Applicant Name:  ?????

Application Receipt Date: 080722	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See enclosed DD Form 293 and supporting documents submitted by the Applicant.

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: NIF
Discharge Received: 			   Date: 040620   Chapter: 8-26(a)(2)    AR: NGR 600-200
Reason: Expiration Term of Service/Conviction of a Felony in a State or Federal Penitentiary                    	   RE:     SPD: NA   Unit/Location: HHC (Rear), 108th Inf, New York Army National Guard, 1700 Parkway East, Utica, NY 

Time Lost: NIF

Article 15s (Charges/Dates/Punishment): Previous Enlistment:  20 July 1999, Applicant was reduced in grade from E5 to E4 for reason of 'inefficiency' pursuant to Orders 201-02,DA, HQ, 2nd Bn, 108th Inf, New York Army National Guard, 1700 Parkway East Armory, Utica, New York.

Previous Enlistment:  7 January 1992, Removal of Bar to Reenlistment imposed on 3 October 1991.  The record of evidence indicates the Applicant's Bar to Reenlistment was the result of the following:  Article 15, 29 May 1991; Article 15, 6 July 1991; Dishonored check ,12 July 1991; Alcohol Influence Report, 15 July 1991; ADAPCP Enrollment, 15 July 1991; Letter of Concern, 2 April 1991. 

Courts-Martial (Charges/Dates/Punishment): NIF

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  35
Current ENL Date: 030620    Current ENL Term: 1 Years  (1 yr extension in the NYARNG)
Current ENL Service: 	01 Yrs, 00Mos, 00Days ?????
Total Service:  		18 Yrs, 00 Mos, 00 Days ?????
Previous Discharges: 	RA - 860826-890425/HD
                                       RA - 890426-920219/HD 
                                       NYARNG - 920220-930620/HD
                                       NYARNG - 930621-940620/HD
                                       NYARNG - 940621-950620/HD 
                                       NYARNG - 950621-010620/HD 
                                       NYARNG - 010620-030619/HD
                                       USAR -      020309-020824/HD (Concurrent service) (mobilized, Opn Noble Eagle)
Highest Grade: E5		Performance Ratings Available: Yes    No 
MOS: 11B  Infantryman   GT: 108   EDU: 2 yrs college   Overseas: Alaska   Combat: NIF
Decorations/Awards: AGCM, NDSM (2), AFRM w/M Device, ASR, OSR, Duty in Aid to Civil Authorities Medal




V.  Post-Discharge Activity
City, State:  Buckton, NY
Post Service Accomplishments: Applicant states he has "not touched a drop of alcohol in over 5 yrs now and been through rehab."

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence shows the Applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army.  The record indicates that on 12 July 2004, the Office of the Adjutant General, Joint Force Headquarters, 330 Old Niskayuna Road, Latham, New York, Orders 194-1016, discharged the Applicant from the New York Army National Guard, effective 20 June 2004, with an under other than honorable conditions discharge by reason of expiration of service/conviction of a felony in a state or federal penitentiary.  The record includes  NGB Form 22 which indicates that the Applicant was discharged under the provisions of Paragraph 8-26(a)(2), NGR 600-200, with a characterization of service of under other than honorable conditions, and a reenlistment eligibility (RE) code of "4."
       In his application, the Applicant states that on 19 February 2002 he was arrested for driving while intoxicated (DWI) and, having had a prior DWI 5 years prior, the charge was characterized as a felony and, as a result, he was incarcerated until 2 July 2005. 

       b.  Legal Basis for Separation:  
       Nation Guard Regulation (NGR) 600-200 and Army Regulation 135-178 govern procedures for the administrative separation of enlisted personnel of the Army National Guard and Army Reserve.  Chapter 8 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army National Guard and as a Reserve of the Army.

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of the Applicant’s available military records for the period of enlistment under review, the issue and documents he submitted, the analyst found no mitigating factors that would merit an upgrade of the Applicant's discharge.  The Applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the State of New York Army National Guard and a Reserve of the Army.  However, the record does contain a properly constituted NGB Form 22 (Report of Separation and Record of Service), which indicates that the Applicant was unavailable for signature.  This document identifies the reason and characterization of the service and the analyst presumed Government regularity in the discharge process.  The evidence of record shows the Applicant was discharged under the provisions of Chapter 8, paragraph 8-26(a)(2),with a characterization of service of under other than honorable conditions.  Barring evidence to the contrary, 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.  The analyst noted the Applicant’s issue; however, the evidence was not sufficiently mitigating to warrant an upgrade of the discharge under review.  Furthermore, at the time of discharge the Applicant was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” cannot be waived and the Applicant is no longer eligible for reenlistment. Therefore, the analyst determined that the reason for discharge and the characterization of service remains both proper and equitable and recommends to the Board to deny relief.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 22 May 2009         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: NA

VIII.  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 determined that the discharge was both proper and equitable and voted to deny relief.  
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 0    No change 5
Reason -     Change 0    No change 5
(Board member names available upon request)
								         EDGAR J. YANGER			 
								         Colonel, U.S. Army
X.  Board Action Directed					         President, Army Discharge Review Board
Issue a new DD Form 214  					
Change Characterization to: 			         
Change Reason to: No Change
Other: No Change										
RE Code: 
Grade Restoration:   No   Yes   Grade: No Change
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080011506
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