Applicant Name:  ?????

Application Receipt Date: 2008/09/26	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The Applicant states:  "I had more than 6 years of creditable service prior to being notified of my separation action.  I was denied my right to appear before an administrative separation board.  My attorney, CPT (name redacted), Contacted my unit (MAJ name redacted) and informed him that it was improper to separate me without the benefit of the board and MAJ (name redacted) emphatically stated he didn't care, he just wanted me gone.  My unit forwarded my chapter action forward without giving me the appropriate opportunity to consult with counsel.  My action was already forwarded to the intermediate authority before I had the opportunity to complete my election of rights form.  My attorney attempted on numerous occassions to remedy this shortcoming through my unit but was constantly met with complete disregard.  Because of my unit's blatant disregard for the proper processing steps outlined in AR 635-200, I am asking that I be reinstated as if I had never been separated.  Should I not be reinstated, I would ask that my discharge be upgraded to Honorable."  He provides several documents for the Board's consideration.

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: Not In File (NIF)
Discharge Received: 			   Date: 080502   Chapter: 13    AR: 635-200
Reason: Unsatisfactory Performance	   RE:     SPD: JHJ   Unit/Location: B Co, 325th MI Bn, Fort Monmouth, NJ 

Time Lost: None

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

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  31
Current ENL Date: OAD 071022    Current ENL Term: NIF Years  ?????
Current ENL Service: 	00 Yrs, 06Mos, 11Days ?????
Total Service:  		05 Yrs, 09Mos, 15Days ?????
Previous Discharges: 	ARNG 041229-070607/HD
                                       USN 990810-020604/GD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 92Y10/Unit Supply Spc   GT: NIF   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, AFEM, SSDR (Navy)

V.  Post-Discharge Activity
City, State:  Bladensburg, MD
Post Service Accomplishments: None listed




VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The facts and circumstances pertaining to the applicant’s discharge from the Army are not contained in the available records.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant.  The DD Form 214 indicates that the applicant was discharged under the provisions of Chapter 13, AR 635-200, by reason of unsatisfactory performance with a characterization of service of general, under honorable conditions.  The documentation provided with his application indicate that on 21 February 2008, the unit commander notified him of initiation of separation action under the provisions of Chapter 13, paragraph 13-2a, AR 635-200, by reason of unsatisfactory performance for reasons specified in the counseling statements which were part of the separation packet and which documented his inability to perform satisfactorily, with a general under honorable conditions discharge.  He was advised of his rights.  The applicant’s election of rights document is not contained in the packet submitted with his application.  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 a general under honorable discharge.  On 1 March 2008, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a general under honorable conditions discharge.  

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  Army policy states that a general, under honorable conditions discharge is normally considered appropriate, however, a fully honorable discharge may be granted in meritorious cases.

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s available military records, the issue and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant’s discharge.  The applicant’s official record is void of the specific facts and circumstances concerning the events that led to the former Soldier’s discharge from the Army.  However, the applicant’s record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge and the analyst presumed Government Regularity in the discharge process.  The DD Form 214 indicates that the applicant was discharged under the provisions of Chapter 13, AR 635-200, by reason of unsatisfactory performance, with a characterization of service of general, under 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.  Furthermore, the analyst noted the Applicant's issue that he was denied his right to an Administrative Separation Board to which he was entitled because he had more than six years in the military, however, the record indicates he served 5 years, 9 months, and 15 days.  If the applicant desires to appear before a personal appearance Board, the burden of proof remains with him to provide the appropriate documents or other evidence sufficient to validate his claim that he served more than 6 years for the Board’s consideration.  Therefore, the analyst determined 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: 2 July 2009         Location: Washington, D.C.

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 1    No change 4
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: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080014905
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