Applicant Name: 

Application Receipt Date: 080317	

Prior Review    Prior Review Date: None

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

Issues: The applicant states "I was denied the right to counsel.  I choice to have a civilian attorney w/ a my military attoney as co-counsel due to my civilian attoney's unformiluarity with military procedures and was told I could have only one attoney.  Section 838. Art 38. Duties of the Defense counsel state that I may have my military counsel serve as co-counsel to my civilian counsel if I so wish.  Myself and my civilian counsel was informed by the president of the board and my military counsel that I could not have duel counsel.  This is a direct violation of my rights to councel.  I am requesting that my separtation was invalid."

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: 060609
Discharge Received:     Date: 070627   
Chapter: 14    AR: 635-200
Reason: Misconduct
RE:     SPD: JKQ
Unit/Location: USAREC Great Lakes RBN TA, Fort Knox, KY 

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
Year/Month:  1967/08  
HOR City, State: Detroit, MI
Current ENL Date: 020801    Current ENL Term: Indefinite Years  ?????
Current ENL Service: 04 Yrs, 10Mos, 27Days ?????
Total Service:  16 Yrs, 08Mos, 03Days ?????
Previous Discharges: RA-901025-940314/HD
                                      RA-940315-970312/HD
                                      RA-970313-000627/HD
                                      RA-000628-020731/HD
Highest Grade: E7
Performance Ratings Available: Yes    No 
MOS: 42A3P5W/Human Resources Specialist   GT: 120   EDU: Coll Grad   Overseas: Germany, Southwest Asia   Combat: Saudi Arabia/Desert Storm/NIF
Decorations/Awards: MSM, ARCOM-3, AAM-3, AGCM-5, NDSM-3, AFEM, GWOTSM, NCOPDR-3, ASR, OSR-2, KLM-SA, KLM-K, CIB, EIB, MPB, SPB, PB, AAB

V.  Post-Discharge Activity
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      Evidence of record shows that on 9 June 2006, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, AR 635-200, by reason of misconduct—commission of serious offenses for being arrested on (060223) by Michigan State University Police and charged with conspiracy to commit home invasion, home invasion, three counts of assault with a dangerous weapon, and five counts of weapons-felony firearm by carrying or having in his possession a firearm, with a general under honorable conditions discharge.  He was advised of his rights.  On 19 June 2006, the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board.  The applicant did not submit a statement on 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 with an under other then honorable conditions discharge.  On 12 February 2007, the applicant was notified to appear before an administrative separation board and advised of his rights.  On 9 May 2007, the administrative separation board convened.  The applicant appeared with counsel.  The board recommended that the applicant be discharged with issuance of a character of service of general, under honorable conditions.  On 9 June 2007, the separation authority approved the recommendation of the administrative separation board 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, documents, and the issue he submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  The applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  By his misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  Furthermore, the analyst noted the applicant issue, however, the analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In view of the foregoing, the analyst determined that the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. 
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 23 February 2009              
Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: Yes

Witnesses/Observers: Yes 

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 0    No change 5   - 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 discharge was both proper and equitable, and voted to deny relief.

								        
X.  Board Action Directed
No Change 
Issue a new DD Form 214  
Change Characterization to:    
Change Reason to: NA
Other: NA
RE Code:  
Grade Restoration:   No   Yes  Grade: NA

XI.  Certification Signature and Date
Approval Authority: 

EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board

Official: 


CHRISTINE U. MARTINSON			DATE: 23 February 2009
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080004302
______________________________________________________________________


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