Applicant Name:  ?????

Application Receipt Date: 2009/03/11	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 149 submitted by the applicant.

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   N/A

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 040227
Discharge Received: 			   Date: 040729   Chapter: 14-12c       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKQ   Unit/Location: Battery C, 3d Battalion, 7th Field Artillery, Schofield Barracks, HI 

Time Lost: AWOL x 5 for a total of 91 days; (031009-031019; 11 days), (031022-031028; 7 days), (031101-031103; 
3 days), (031107-031202; 25 days) and (031204-040119; 45 days) mode of return, unknown.

Article 15s (Charges/Dates/Punishment): 040305, without authority, absent yourself from your unit - Battery C, 3d Battalion, 7th Field Artillery - and  remained so absent  x3 (031101-031104, 031107-031203 and 031203-040122);  reduction to Private (E1); extra duty 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:  21
Current ENL Date: 010511    Current ENL Term: 4 Years  ?????
Current ENL Service: 	3 Yrs, 2Mos, 18Days ?????
Total Service:  		5 Yrs, 0Mos, 18Days ?????
Previous Discharges: 	RA 990408-010509/HD (current extension to original 3 year enlistment NIF)
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 13B10 Cannon Crewmember   GT: 95   EDU: GED   Overseas: Hawaii   Combat: Kosovo
Decorations/Awards: AAM, GWOTSM, NATO MDL, AGCM, NDSM, ASR, OSR, KCM

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None provided by applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 18 February 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 12c (1), AR 635-200, by reason of misconduct commission of a serious offense for being absent without leave x5 (031009-031020), (031022-031029), (031101-031104), (031107-031203) and (031203-040122); disobeying a commissioned officer (031009); disobeying a noncommissioned officer x3 (030609) (030610) and (030701) and failure to report to your place of duty x2 (030701) and (030708), 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, 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 commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge.  Although the memorandum is not dated, 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 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, 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.  The applicant’s discharge was appropriate because the quality of the former Soldier’s 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 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 applicant was discharged under the provisions of Chapter 14, Paragraph 14-12c, AR 635-200.  The analyst noted the applicant's issue and determined the narrative reason specified by Army Regulations for a discharge under this paragraph is "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.   Further, 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.  Therefore, the analyst determined that 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: 9 December 2009         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

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 discharge was both proper and equitable and 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
								         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: N/A
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090004977
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