Applicant Name:  ?????

Application Receipt Date: 2009/04/24	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See 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: 080506
Discharge Received: 			   Date: 081114   Chapter: 14-12c    AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: HHC, 1st Cav Bde, Fort Hood, TX 

Time Lost: None

Article 15s (Charges/Dates/Punishment): None in file

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  25
Current ENL Date: 071204    Current ENL Term: 4 Years  ?????
Current ENL Service: 	00 Yrs, 11Mos, 10Days ?????
Total Service:  		07 Yrs, 08Mos, 25Days ?????
Previous Discharges: 	RA 010220-050616/HD 
                                       RA 050617-071203/HD
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 13F1P/Fire Spt Spc   GT: 107   EDU: HS GRAD   Overseas: SWA, Korea   Combat: Iraq (041006-051005 and 060927-080124)
Decorations/Awards: ARCOM-3, AAM-2, AFAM, VUA, AGCM-2, NDSM, GWOTSM, GWOTEM, KDSM, ICM/1BSS, ASR, OSR, CAB, NCOPDR

V.  Post-Discharge Activity
City, State:  Killeen, 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 6 May 2008, 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 misconduct—commission of a serious offense, for being charged with driving while intoxicated on 27 August 2006 and on 21 March 2008, with an under other than honorable conditions discharge.  He was advised of his rights.  On 13 May 2008, the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board. The applicant did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed discharge action and recommended approval with an under other than honorable conditions discharge.  On 8 September 2008, the applicant was notified to appear before an administrative separation board and advised of his rights.  On 17 October 2008, the administrative separation board convened.  The applicant appeared with counsel.  The board recommended that the applicant be discharged with issuance of a character of service of under other than honorable conditions.  On 31 October 2008, the separation authority approved the recommendation of the administrative separation board and directed that the applicant be discharged with a characterization of service of under other than honorable conditions.  The applicant was to be reduced to the lowest enlisted rank.

       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 available military records, and the issue and documents submitted with the application, the analyst found several mitigating factors that would merit a partial upgrade of the applicant's characterization of service to general, under honorable conditions.  The analyst does not condone the applicant’s misconduct; however, the evidence in this case supports a conclusion that the characterization of service was too harsh, and as a result it is inequitable.  The analyst found that the length and quality of the applicant's service to include his two combat tours in Iraq, his numerous awards, and the circumstances surrounding the misconduct mitigated the discrediting entries in his service record.  The analyst noted that one of the DWI offenses occurred on 27 August 2006 and the applicant deployed to Iraq with his unit on 24 September 2006.  The applicant was not enrolled in the ASAP program until after he had returned from deployment. The applicant reenlisted while in Iraq on 4 December 2007.  
       
       AR 635-200, paragraph 3-8, stipulates that characterization will be determined solely by the Soldier’s military record which includes the Soldier’s behavior and performance of duty during the current enlistment or period of service to which the separation pertains.  It further stipulates that to the extent that such matters are considered on the issue of retention or separation, the record of proceedings will reflect express direction that such information will not be considered on the issue of characterization.  The record does not contain such a record and the analyst concluded that the rights of the applicant were not prejudiced by this harmless error in that the commanders and administrative separation board considered both offenses to determine the issue of retention or separation.  
       
       Accordingly, the analyst recommends that partial relief be granted in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the analyst determined that the reason for discharge was fully supported by the record and therefore, remains both proper and equitable.  This action entails restoration of grade to E-6/SSG.
       
       
       
       
       
       
       
       
       
       
       
       
       
       
       

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 29 January 2009         Location: Washington, D.C.

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 characterization of service was too harsh based on the applicant’s length and quality of his service to include his two combat tours and as a result it is inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined that the reason for discharge was proper and equitable and voted not to change it.  This action entails restoration of grade to E-6/SSG.
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 3    No change 2
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: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: E-6/SSG
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090007089
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