Application Receipt Date: 060713	

Prior Review    Prior Review Date: None

I.  Applicant Request
Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and attached documents.

II.  Were Proper Discharge and Separation Authority procedures followed?  
Yes    No        Tender Offer:   ?????

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Original Character of Discharge
Unit CDR Recommended Discharge:    Date: 040930
Discharge Received:     Date: 041020   
Chapter: 14    AR: 635-200
Reason: Misconduct
RE:     SPD: JKA
Unit/Location: A Company 52nd Engineer Battalion, Fort Carson, CO 80913 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 040716-without authority, failed to go to his appointed place of duty x 2, (040614) and (040617), violated a lawful general regulation, by having visitors in his barracks room beyond the authorized visitation hours, (040614), (Company Grade).

040505-without authority, failed to go to his appointed place of duty, (040419), without authority, absented himself from his place of duty where he was required to be, from (040615-040619), (Company Grade). 

Court-Martials (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  771007  
Current ENL Date: 030102    Current ENL Term: 3 Years  ?????
Current ENL Service: 01  Yrs, 09 Mos, 19 Days ?????
Total Service:  01 Yrs, 09 Mos, 19 Days ?????
Previous Discharges: ARNG-991220-011207/GD
                                      ADT-000229-000713/UNC
                                          (Concurrent Service)
Highest Grade: E3
Performance Ratings Available: Yes    No 
MOS: 62E10 Heavy Construction Equip Operator   GT: NIF   EDU: GED Cert   Overseas: SouthWest Asia   Combat: Iraq (030310-040228)
Decorations/Awards: NDSM, GWOTEM, GWOTSM, ASR, OSR, OSB (2)
V.  Post-Discharge Activity
Home of Record: 
Current Address: 
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      Evidence of record shows that on 30 September 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, AR 635-200, by reason of misconduct—pattern of misconduct (he received several counseling statements for compulsory insurance, no registration, driving while license under restraint, habitual offender, failed to be at his appointed place of duty on several occurances, lying to a NCO and fellow Soldiers, and disobeying a lawful order.  He received two Article 15s for failing to be at his appointed place of duty x 4, and violating a lawful general regulation), with a general, under honorable conditions discharge.  He was advised of his rights.  The applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge.  On 30 September 2004, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions.
      
      
      
       

      b.  Legal Basis for Separation:  
      Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

      c.  Response to Issues, Recommendation and Rationale:  
      After a careful review of all the applicant’s military records during the period of enlistment under review and the issue and documents he submitted, the analyst noted that the unit commander used “Board Procedures” when notifying the applicant that he was initiating action to separate him under the provisions of Chapter 14, AR 635-200, by reason of misconduct.  By using “Board Procedures” the authority for approval of the applicant’s separation rested with the General Court-Martial Convening Authority.  The evidence of record shows that someone other than the General Court-Martial Convening Authority approved the applicant’s discharge.  In view of the foregoing, the discharge was improper.  Accordingly, relief in the form of an upgrade of the characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority is recommended to the Board.  This action does not entail a change to the reentry eligibility (RE) code; however, the Board can consider it. 

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 11 July 2007              
Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: NA




VIII.  Board Decision
The discharge was:			Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The characterization of service was:   Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The narrative reasons were: 	       	Equitable	 	Inequitable	

DRB voting record:  		      Change 5    No change 0   - Character
		 			      Change 0    No change 5   - Reason
					      (Board member names available upon request)

IX.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board does not condone the applicant’s misconduct; however, determined that the characterization of service was too harsh, and as a result, it is inequitable. The Board found that the length of the applicant's service; to include his combat service, mitigated the discrediting entries in his service record.  Accordingly, the Board voted to grant relief in the form of an upgrade of the the characterization of service to fully honorable.  However, the Board determined that the reason for discharge was both proper and equitable, and voted not to change it. 
















Case report reviewed and verified by: Mr. Kenneth McFarley, Examiner									        
X.  Board Action Directed
No Change 
Issue a new DD Form 214  
Change Characterization to:    
Change Reason to: None
Other: NA
RE Code:  
Grade Restoration:   No   Yes  Grade: None

XI.  Certification Signature and Date
Approval Authority: 

MARK E. COLLINS
Colonel, U.S. Army
President, Army Discharge Review Board

Official: 


MARY E. SHAW				DATE: 20 July 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20060009811

Applicant Name:  Mr.        
______________________________________________________________________


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