Applicant Name:  ?????

Application Receipt Date: 2009/01/16	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See enclosed DD Form 293 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: 020509
Discharge Received: 			   Date: 020615   Chapter: 14-12c       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKQ   Unit/Location: 77th Maint Co, APO AE 09089 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 020201, wrongfully and unlawfully utter a worthless check to AAFES in the amount of $164.46 (011005), and failure to report x 4 (011103), (011203), (011203), and (011209); reduction to E-1, forfeiture of $521 pay x 2 months, extra duty for 45 days, and restriction for 45 days (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 000229    Current ENL Term: 3 Years  ?????
Current ENL Service: 	02 Yrs, 03Mos, 17Days ?????
Total Service:  		02 Yrs, 03Mos, 17Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 52D10 Power Generator Equipment Repairer   GT: 104   EDU: HS Grad   Overseas: Germany   Combat: None
Decorations/Awards: NDSM, ASR

V.  Post-Discharge Activity
City, State:  Havre de Grace, MD
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 9 May 2002, 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-commission of a serious offense for disobeying a lawful order from a SSG x 2 (011121), (010812), uttering a worthless check to AAFES (011005), reported for Sergeant's time training in the improper uniform (020411), and failure to report x 13 (020410), (020304), (020213), (011226), (011203), (010301), (010110), (020329), (020220), (020219), (011209), (021203), and (011103), with an under other than 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.  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 an  under other than honorable conditions discharge.  On 7 June 2002, the separation authority 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, 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 all the applicant’s military records during the period of enlistment under review and the issue he submitted, the analyst determined that the discharge is improper.  The analyst noted that the unit commander used “Board Procedures” when notifying the applicant that he was initiating action to separate him under the provisions of Chapter 14, AR 635-200, by reason of misconduct, with an under other than honorable conditions discharge and therefore was entitled to an administrative separation board. The applicant consulted with legal counsel and requested consideration his case by an administrative separation board.  Furthermore, the record does not reflect that the applicant submitted a conditional waiver of his right to an administrative separation board.  The analyst determined that denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and as a result the discharge is improper.  By using “Board Procedures” the authority for approval of the applicant’s separation rested with the General Court-Martial Convening Authority.  The evidence of record further shows that someone other than the General Court-Martial Convening Authority approved the applicant’s discharge.  In view of the foregoing, the analyst recommends to the Board to grant relief 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.  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: 7 October 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 narrative reason for separation to Secretarial Authority.  This action entails a change to the reentry eligibility (RE) code to "1."









        
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. 
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090003086
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