Applicant Name:  ?????

Application Receipt Date: 090105	Prior Review:     Prior Review Date: 10 September 2007

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and supporting documentation 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: 050713
Discharge Received: 			   Date: 051020   Chapter: 14-12c    AR: 635-200
Reason: Misconduct, Commission of a Serious Offense	   RE:     SPD: JKQ   Unit/Location: B Co, 84th Eng Cbt Bn (Hvy), Schofield barracks, HI 

Time Lost: Military Confinement 13 days (050531-050614) as a result of summary court-martial conviction.

Article 15s (Charges/Dates/Punishment): In his application, the Applicant provided a document dated 31 January 2007, entitled "Article 15 Argument", in which he indicates in April 2004, he received an Article 15 for making a threat against another Soldier.  The record of evidence does not contain referenced Article 15; however, the record of evidence contains a memorandum from the Applicant's commander (colonel), dated 21 September 2005, stating the Applicant "was rehab transferred from A Company to B Company after he had received an Article 15 for disobeying a lawful order and threatening members of his platoon.  While assigned to B Company, he received another Article 15 for disrespect and going AWOL.  He is now in D Company, and while there he has been counseled for missing formations twice and disrespecting the company commander."  The record of evidence does not contain the referenced Article 15s.

Courts-Martial (Charges/Dates/Punishment): 050531, SCM, contempt of a 1SG (050404), disruption of accountability formation (050404); Reduction to E1, forfeiture of $823.00 pay and, confinement for 14 days.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 030409    Current ENL Term: 04 Years  ?????
Current ENL Service: 	02 Yrs, 05 Mos, 28 Days ?????
Total Service:  		02 Yrs, 05 Mos, 28 Days ?????
Previous Discharges: 	None
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 21K  Plumber   GT: 100   EDU: HS Grad   Overseas: Hawaii, SWA   Combat: Iraq (040116-050131)
Decorations/Awards: NDSM, GWOTSM, ASR, OSR

V.  Post-Discharge Activity
City, State:  Beaverton, OR
Post Service Accomplishments: Applicant provided documentation indicating attendance at Portland Community College.  Applicant states he is currently enlisted in the National Guard and provided letters of recommendation indicating such.




VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 13 July 2005, the unit commander notified the Applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct—for contempt toward a 1SG (050404), disorderly disruption of an accountability formation (050404), failure to report x 2  (050524 & 050525), with an under other than honorable conditions discharge.  The Applicant was advised of his rights,  waived legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to an administrative separation board, 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 commander reviewed the proposed discharge action and recommended approval of the separation action with a general under honorable conditions discharge.  On 28 September 2005, the separation authority waived further rehabilitative efforts and directed that the Applicant be discharged with a characterization of service of under other than honorable conditions.
       On 10 September 2007, the Applicant appeared before the Army Discharge Review Board (ADRB) following which, the ADRB upgraded the Applicant's characterization of discharge to general, under honorable conditions.  The ADRB made no other changes to the Applicant's original DD Form 214.

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation 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, however, a general under honorable conditions or an honorable discharge may be granted.   

       c.  Response to Issues, Recommendation and Rationale:  
             After a careful review of the Applicant’s military records, and the issue and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the Applicant's discharge.  There was a full consideration of all faithful and honorable service as well as the infractions of discipline, the extent thereof, and the seriousness of the offenses.  The analyst determined that the Applicant’s discharge was appropriate because the quality of service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  By the misconduct, the Applicant diminished the quality of the former Soldier’s 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 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.  Additionally, the record does not support the Applicant’s contention, and no evidence to support it has been submitted by the Applicant, that the discharge was the result of any medical condition.  Also, in response to the Applicant's issue, the method in which another Soldier’s case was handled is not relevant to the Applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.  Furthermore, at the time of discharge the Applicant was appropriately assigned a reentry eligibility (RE) code of “3.”  If reenlistment is desired, the Applicant should contact the local recruiter to determine eligibility to reenlist.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes.  Additionally, in response to the Applicant's issue and, after a careful review of the Applicant’s military records during the period of enlistment under review and the issue and documents submitted with the application, the analyst found no mitigating factors that would merit a change to the narrative reason for discharge on the applicant's DD Form 214.  The Applicant was discharged under the provisions of Chapter 14, AR 635-200, by reason of misconduct,commission of a serious offense, with a general, under honorable conditions discharge.  The narrative reason for separation is governed by specific directives.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct, Commission of a Serious Offense” and the separation code is "JKQ."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  Lastly, the analyst noted the Applicant’s issue and determined that the Applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review.  And, the analyst noted the applicant's issue; however, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  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: 24 August 2009         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: Yes

Witnesses/Observers: None 

Exhibits Submitted: Yes

VIII.  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, 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 AR20090002212
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