Applicant Name:  ?????

Application Receipt Date: 2009/03/02	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and supporting documents sybmitted 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: 080122
Discharge Received: 			   Date: 080311   Chapter: 14-12B       AR: 635-200
Reason: Pattern of Misconduct	   RE:     SPD: JKA   Unit/Location: HHD, 3rd Chemical Bde, Ft Leonard Wood, MO 

Time Lost: AWOL 20 days, (070521-070609), returned to unit.

Article 15s (Charges/Dates/Punishment): 070716, AWOL (070521-070610) with the intent to deceive, alter an official document (DA Form 31) on (070403); no punishment imposed (CG).

071023, treated two noncommissioned officers with contempt and willfully disobeyed a lawful order X2, on (070921), fail to go at the time prescribed to his appointed place of duty X2 on (070829 and 070901); reduction to E2, suspended to be automatically remitted if not vacated before 080222, forfeiture of $340, suspended to be automatically remitted if not vacated before 080420, extra duty and restriction for 10 days (CG).

071129, vacation of suspension, reduced to E2 and forfeiture of $340 for failure to go at the time prescribed to his appointed place of duty on (071129), (CG) 

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  25
Current ENL Date: 040930    Current ENL Term: 4 Years  18 weeks
Current ENL Service: 	3 Yrs, 04Mos, 23Days ?????
Total Service:  		3 Yrs, 04Mos, 23Days ?????
Previous Discharges: 	None
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 42A/Human Resources Spec   GT: 118   EDU: HS Grad   Overseas: Germany, SWA   Combat: Iraq (060107-061204)
Decorations/Awards: JSCM, JMUA, NDSM, GWOTSM, ICM, ASR, OSR

V.  Post-Discharge Activity
City, State:  St. Roberts, MO
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 the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 12b, AR 635-200, by reason of pattern of misconduct for receiving two Article 15s for several violations of the UCMJ, being absent without leave for about 20 days; disrespectful and failed to be at his appointed place of duty, with an under other that 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 honorable and submitted 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 that the applicant be retained in the service.  On 16 February 2008, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions.  At no time during the separation process was the applicant notified to appear before an administrative separation board after voluntarily waiving consideration of his case contingent upon him receiving a characterization of service no less favorable than honorable.

       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 he submitted, the analyst determined that the applicant's characterization of service is improper.  The evidence of record shows that the applicant consulted with legal counsel and waived his right to an administrative separation board contingent upon receiving an honorable discharge.  The analyst noted that he was entitled to have his case reviewed by an administrative separation board because he was being considered for a separation with a discharge characterization of under other than other condition.  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 based on the conditional waiver he submitted nor an honorable characterization of service.  Furthermore, denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the characterization of his service 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.  However, the narrative reason for discharge was both proper and equitable.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 20 November 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 was and 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 at the time of initiation of separation action.  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 waived consideration of his case by an Administrative Separation Board contingent upon him receiving a characterization of service no less favorable than honorable.  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 discharge is improper.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to fully honorable.
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
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: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090007135
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