Applicant Name:  ?????

Application Receipt Date: 2008/11/26	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 149 and attached document submitted by the applicant in lieu of DD Form  293.

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: 041229
Discharge Received: 			   Date: 050414   Chapter: 14-12b       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKA   Unit/Location: B Btry, 2-77 FA Bn, Fort Hood, TX 

Time Lost: AWOL x 2  for 9 days (041109-041114), returned to unit and (050412-050414), mode of return unknown. 

Article 15s (Charges/Dates/Punishment): 041117, disobeyed a lawful order from a 1SG (041109), AWOL (041109-041115), failure to report x 2 (041108) and (040912), reduction to E-5, forfeiture of $1183 x 2 (suspended), and extra duty for 45 days (FG).

040824, failure to report x 3 (040624), (040709) and, (040727); forfeiture of $651 (suspended), and extra duty for 14 days (CG).

040930, suspension of punishment of forfeiture of $651 was vacated for new offense of failure to report (040912). 

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  37
Current ENL Date: 990219    Current ENL Term: Indef Years  ?????
Current ENL Service: 	06 Yrs, 01Mos, 13Days ?????
Total Service:  		18 Yrs, 00Mos, 05Days ?????
Previous Discharges: 	RA-870401-920507/HD
                                       RA-920508-920830/HD
                                       RA-920831-960527/HD
                                       RA-960528-990218/HD
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 25U20 Signal Support Systems Spec   GT: 116   EDU: 13 Years   Overseas: Korea/Southwest Asia   Combat: Iraq (030404-040403)
Decorations/Awards: ARCOM-3, AAM-6, AGCM-5, NDSM,  GWOTEM, GWOTSM, KDSM, HSM, NCOPDR-2, ASR, OSR-2

V.  Post-Discharge Activity
City, State:  Edcouch, TX
Post Service Accomplishments: None Listed


 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 29 December 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, Paragraph 14-12b, AR 635-200, by reason of misconduct—pattern of misconduct for failure to report x 5 (041108), (040912), (040624), (040709) and, (040727); disobeyed an order (041109), AWOL (041109-041115), and relieved of property accountability (040921), 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, requested consideration of his case by an administrative separation board, and did not submit a statement in his own behalf.  On 22 March 2005, again the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than general, under honorable conditions, 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 and senior intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge.  On 1 April 2005, the separation authority approved the conditional waiver request, 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, the issues and document he submitted, the analyst determined that the discharge is improper.  The evidence of record shows that the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board and had over 17 years of total active military service at the time of initiation of separation action. The General Court Martial Convening Authority (GCMCA) referred the applicant's case to the standing administrative separation board.  Subsequently, the applicant conditionally waived his right to an administrative separation board.  However, Paragraph 2-5, AR 635-200, states waivers of the board hearing will not be accepted in the case of Soldiers who have completed 18 or more years of active Federal service.  Furthermore, when the applicant submitted his conditional waiver, he had not completed 18 or more years of active Federal service when the waiver was approved.  Further, Paragraph 1-19f, AR 635-200, states any Soldier who has completed 18 or more years of active Federal service will not be involuntarily discharged or released from active duty without approval at HQDA level.  The authority for approval of the applicant’s separation rested with the HQDA level approving authority.  Additionally, the evidence of record shows that someone other than the HQDA level approving authority approved the applicant’s discharge.  In view of the foregoing, the discharge is improper.  Accordingly, the analyst recommends to the Board that relief be granted 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 with a corresponding separation (SPD) code of "JFF."  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: 23 July 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 is improper.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to fully honorable and a change to the reason for separation to Secretarial Authority with a corresponding separation (SPD) code of "JFF."  This action does not entail a change to the reentry eligibility (RE) code. 
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
Reason -     Change 5    No change 0
(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: Secretarial Authority under provisions of Chapter 5, AR 635-200, with a corresponding separation (SPD) code of "JFF." 
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090000355
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