Application Receipt Date: 061207	

Prior Review    Prior Review Date: None

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

Issues: See applicant's attached DD Form 293 and supporting 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: NIF
Discharge Received:     Date: 061029   
Chapter: 14    AR: 635-200
Reason: Misconduct (Drug Abuse)
RE:     SPD: JKK
Unit/Location: None 

Time Lost: None

Article 15s (Charges/Dates/Punishment): None

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  780409  
Current ENL Date: 041116    Current ENL Term: 03 Years  ?????
Current ENL Service: 01 Yrs, 11Mos, 04Days ?????
Total Service:  10 Yrs, 03Mos, 06Days (Applicant's DD Form 214 incorrectly shows total service as 11 yrs, 1 mos, and 29 days, should read 10 yrs, 3 mos, 6 days)
Previous Discharges: RA-960724-000723/HD
                                      ARNG-000724-041115/NA
Highest Grade: E6
Performance Ratings Available: Yes    No 
MOS: 19D20 (Cavalry Scout)   GT: 102   EDU: HS Grad   Overseas: Bosnia   Combat: None
Decorations/Awards: ARCOM, AAM, ARCAM, NDSM, AFEM, GWOTSM, ARSM, ASR, OSR, NM
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:
      The applicant's record is void of the unit commanders notification, and the analyst is presuming Government Regularity in the discharge process.  However, the  record shows that on 21 November 2005, the applicant acknowledge receipt of the notification of separation proceedings under the provisions of Chapter 12, AR 135-178.  He was advised of his rights.  The applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an Administrative Separation Board, and submitted a statement in his own behalf.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts under the provisions of Chapter 12, AR 135-178, by reason of misconduct—commission of a serious offense (testing positive for the use of cocaine as a result of a unit urinalysis conducted on 28 October 2005), with a under, other than honorable conditions discharge.  On 22 April 2006, the applicant was notified to appear before an administrative separation board.  On 6 May 2006, the board met, applicant appeared with counsel.  The board recommended that the applicant be separated from the AGR Program with a general, under honorable conditions, and that the applicant be separated from the New York Army National Guard with a general, under honorable conditions discharge and that his discharge from the New York Army National Guard be suspended for a period of twelve months.  The record is void of the separation authority's approval letter directing that the applicant be discharge from the service, however, the analyst is presuming Government Regularity in the discharge process.  On 4 October 2006, Orders 277-1014, Office of the Adjutant General, State of New York, Latham, New York, released the applicant from Active Duty, effective date:  29 October 2006.
      
      
      
      
      Records also show that the applicant was processed for discharge using Chapter 12, AR 135-178, however his DD Form 214 shows the "Separation Authority" as AR 635-200, Paragraph 14-12c (2), with a "Separation Code" of JKK, a "Reentry Code of "3", and the "Narrative Reason for Separation" as Misconduct (Drug Abuse).

      b.  Legal Basis for Separation:  
      National Guard Regulation (NGR) 600-200 and Army Regulation 135-178 govern procedures covering enlisted personnel management of the Army National Guard.  Chapter 12 of Army Regulation 135-178, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army Reserve National Guard.  Paragraph 12-1 of that regulation provides in pertinent part that individuals can be separated for misconduct by reason of one or more of the following:  minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and abuse of illegal drugs.

      c.  Response to Issues, Recommendation and Rationale:  
      After a careful review of all the applicant’s military records, and the issue he submitted, the analyst found several mitigating factors that would merit an upgrade of the characterization of service to general, under honorable conditions.  This recommendation was made after full consideration of his faithful and honorable service, as well as his record of misconduct.  While the applicant's misconduct is not condoned, the evidence in this case supports a conclusion that the characterization of service was too harsh, and as a result it is inequitable.  The overall length and quality of the applicant's service mitigated the discrediting entry in his service record.  However, the reason for discharge was both proper and equitable.

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 2 July 2007              
Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: yes [redacted]

Witnesses/Observers: None 

Exhibits Submitted: None

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, hearing his testimony and considering the analyst’s recommendation and rationale, the Board determined that the characterization of service was too harsh, and as a result it is inequitable.  The Board determined that the overall length and quality of the applicant's service, mitigated the discrediting entry in his service record.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  The Board determined that the reason for discharge was both proper and equitable, and voted not to change it.  This action does entail a grade restoration to staff sergeant/E6.

Case report reviewed and verified by: Eric S. Moore, Examiner									        
X.  Board Action Directed
No Change 
Issue a new DD Form 214  
Change Characterization to:    
Change Reason to: NA
Other: TO: ARBA Support Division-St Louis                               Date: 2 July 2007

     The Army Discharge Review board, established under the provisions of Section 30, Public Law 346, 78th Congress, 22 June 1944 and codified as Title 10, United States Code, Section 1553, in the case of the applicant named in Part 1 directs that the ARBA Support Division-St Louis issue a new DD Form 214 to the applicant which reflects the following directed changes:

          (X)  Change characterization of discharge to General, Under Honorable Conditions.

RE Code:  
Grade Restoration:   No   Yes  Grade: E6

XI.  Certification Signature and Date
Approval Authority: 

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

Official: 


MARY E. SHAW				DATE: 11 July 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20060016796

Applicant Name:  Mr.        
______________________________________________________________________


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