Applicant Name:  ?????

Application Receipt Date: 2009/03/09	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, "I made mistakes in my past.  There is no one to blame but myself.  I should have gone through the oped door policy of the CSM for help when I got to my unit.  I arrived at my unit with marital problems but the unit was about to go to Iraq and all focus was the deployment.  The comander and 1SG told me to just smooth things over untill we got back from the deployment.  I agreed to try but as I was away problems just grew.  When i returned my life and my military carrer was going down.  At that point I felt like I was alone and didnt know who to trust or go to for help.  I got demoted from Sgt to Spc and felt like my whole life ended at that moment.  Now I am trying to get employment and work overseas and no one hires unless i have a honorable discharge.  I would love to have the opportunity to work overseas to provide for my children and have a better life for myself".

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: 041119
Discharge Received: 			   Date: 041207   Chapter: 14-12b    AR: 635-200
Reason: Misconduct	   RE:     SPD: JKA   Unit/Location: C Co, 704th DSB, 4th Inf Div, Ft Hood, TX 

Time Lost: Civilan confinement (041019-041022), 3 days.

Article 15s (Charges/Dates/Punishment): 020613, willfully disobeyed a lawful command not to have contact with a female soldier (020216), derelict in the performance of those duties in that he failed to not allow a female soldier to drive a POV without a USAREUR driver's license (020216); reduction to E4, forfeiture of $876.20 pay per month for one month, suspended, to be automatically remitted if not vacated before 021010, extra duty and restriction for 45 days (FG).

040831, willfully disobeyed a lawful command not to have contact with a female soldier (070804); reduction to E4, extra duty and restriction for 30 days (FG). 

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  26
Current ENL Date: 020404    Current ENL Term: 3 Years  ?????
Current ENL Service: 	2 Yrs, 08Mos, 04Days ?????
Total Service:  		8 Yrs, 10Mos, 10Days ?????
Previous Discharges: 	RA 960124-020403/HD
Highest Grade: E5		Performance Ratings Available: Yes    No 
MOS: 63B10 Light Wheeled Mech   GT: 113   EDU: HS Grad   Overseas: SWA   Combat: Iraq (030402-040327)
Decorations/Awards: ARCOM, GWOTEM, GWOTSM, AGCM, NDSM, ASR, OSR

V.  Post-Discharge Activity
City, State:  Odessa, TX
Post Service Accomplishments: None submitted by the applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 18 November 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 multiple failures to repair, failure to pay just debts, domestic violence and willfull disobedience of a commissioned officer, with a general, under honorable conditions discharge.  
       He was advised of his rights.  On 18 November 2004, the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board.  The applicant did not submit a statement on 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 with a general, under honorable conditions discharge.  There are no documents in the available record that notified the applicant to appear before an administrative separation board.  
       On 24 November 2004, the separation authority directed that the applicant be discharged with a characterization of service of general, under honorable conditions.
       The record contains a Serious Incident Report dated 14 May 2004 for domestic abuse.  The applicant was confined by civilian authorities for 3 days (041019-041023).

       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 all the applicant’s military records, 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 6 years of total active and reserve military service at the time of initiation of separation action.  The analyst noted that an administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects that the applicant did not receive 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 the discharge is improper. 
        In view of the foregoing, 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.  

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 23 January 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

Exhibits Submitted: None




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 characterization was improper.  

The evidence of record shows that the applicant had over 6 years of total active and reserve military service at the time of initiation of separation action, was entitled to an administrative separation board and requested consideration of his case by an administrative separation board.  The Board noted that an administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects that the applicant did not receive an administrative separation board.  The Board determined that denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the characterization 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.
        
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
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090003610
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