Applicant Name:  ?????

Application Receipt Date: 2009/07/21	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant in effect requests that his characterization of service be upgraded to fully honorable and that his narrative reason for separation be changed to Secretarial Authority.  The applicant also states that he was held past his ETS date, and that someone other than the General Court-Martial Convening Authority approved his discharge.  Based on the dismissal of court-martial charges, to include the delayed timelines of separation (over a year) his discharge should be seen as inequitable, and that his characterization of service and a restoration of grade be granted.

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: 081203
Discharge Received: 			   Date: 090612   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: 2 BCT (R) (P), 4ID (R) (P), Fort Hood, TX 

Time Lost: AWOL x 1 for 456 days (050318-060617), surrendered; 2 days (070723-070724), reason for time lost not found in the available records.  Total time lost 458 days.

Article 15s (Charges/Dates/Punishment): 061023, AWOL (050318-060615), disrespect towards a commissioned officer (060920), disobeying a lawful command from a commissioned officer (060920), and disrespectful in language toward a noncommissioned officer (060920), reduction to E4; forfeiture of $250.00 per month for 2 months (suspended); and 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:  29
Current ENL Date: 011121    Current ENL Term: 05 Years  Retained in Service 484 days for the convenience of the government.
Current ENL Service: 	06 Yrs, 03Mos, 20Days ?????
Total Service:  		10 Yrs, 05Mos, 02Days ?????
Previous Discharges: 	RA-971009-011121/HD
Highest Grade: E5		Performance Ratings Available: Yes    No 
MOS: 35N10/Sigint Analyst   GT: NIF   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: AGCM-2, NDSM, GWOTSM, ASR

V.  Post-Discharge Activity
City, State:  Roseville, CA
Post Service Accomplishments: None Listed





VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       Evidence of record shows that on 3 December 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 of misconduct—commission of a serious offense for having been AWOL (over 30 days), twice through design missed movement of his company, and in addition, he disobeyed lawful orders from his superior commissioned officer and a noncommissioned officer and did not attend required training, with an 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 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 approval of the separation action with an other than honorable conditions discharge.
       
       On 26 February 2009, the separation authority referred the applicant's recommendation for separation IAW Chapter 14, paragraph 14-12c, to an administrative separation board.
       
       On 11 March 2009 and 16 March 2009, the applicant was notified to appear before an administrative separation board and advised of his rights.  On 30 April 2009, 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 28 May 2009, 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's record contains a General Officers Memorandum of Reprimand dated 27 May 2004, for his behavior in preparation for deployment to Iraq as a member of the Army Entertainment Detachment's variety band, USA Express.

       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, the documents, and issues 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 his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  By his misconduct, the applicant diminished the quality of his 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.
       
       The analyst noted the applicant's issue reference changing his narrative reason for separation.  However, the narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 14, paragraph 14-12c, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)", the separation code is "JKQ", and the reentry code is "RE 3".  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, separation code, entered in block 26, and RE Code, entered in block 27 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.
       
       The applicant contends that someone other than the General Court-Martial Convening Authority approved his discharge.  However, records show that on 28 May 2009, the separation authority who is also the General Court-Martial Convening 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.
       
       Furthemore, reference the applicant's issue that he was held past his ETS date.  The analyst noted that the Enlisted Record Brief found in the applicant's records shows his ETS as (090615), however, based on the supporting document in the record (i.e. Enlistment Contract dated 21 November 2001; period of lost time 456 days (050318-060617) and 2 days (070723-070724); and his requirement to be retained in service 484 days for the convenience of the government per 10 USC 12305, the applicant's ETS should have been (090621).
       
       Further, after a full consideration of all faithful and honorable service as well as the infractions of discipline, the extent thereof, and the seriousness of the offenses.  The analyst concluded that the discrediting entries in the applicant's record were not outweighed by service of sufficient merit to warrant a change to the discharge being reviewed. 
       
       In view of the foregoing, the analyst determined that the characterization of service and reason for discharge 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: 12 July 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: [redacted]




Witnesses/Observers: None 

Exhibits Submitted: Dismissal of Court-Martial Charge dated, (080904), Separtion Under AR 635-200 (x 2) dated, (081208 and 090127), Notification of Elimination Board  Proceedings (x3) dated (090311); Request to Clear Installation Without Orders, dated (090504); Disposition of Administrative Separation Board, dated, (090528); DD Form 214, DD Form 137-1 (x2); DD Form 137-2 (x3), Bar From the Fort Hood Military Reservation dated (090615); Orders 047-0112, dated (090216) (x2); Orders 153-0101, dated, (090602); previous Army Discharge Review Board Cases (6).  The applicant submitted the following additional documents in support of his hearing; Article 15 Appeal (14 pages), GOMAR Rebuttal (4 pages), MCK Response (2 pages), DAIG/Branch email (3 pages), Email/MILPER MSG (3 pages), Division Guidelines (1 page), NTC/Rear D (3 pages), Mil ID (1 page), Pages from AR 635-200 (3 pages), Medical Record Documents (10 pages).

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, 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
(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: NA



































Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 

ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090012411
______________________________________________________________________________


Page 3 of 4 pages