Applicant Name:  ?????

Application Receipt Date: 2009/07/16	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: 1.  The applicant in effect requests an upgrade of his discharge to fully honorable.  2.  Change the separation (SPD) code in order so he can reenlist and change the negative comments in the narrative reason block.  3.  Remove the Article 15 from his permanent personnel record.  4.  Remove OER that the chain of command rendered on the basis that the incorrect form was used and it violated Army Regulations.  5.  The applicant requests reinstatement on active duty with current rank, grade and promotion as if no break in service, compensation from date of discharge to current date because of injustices, and he would like to continue with his military service.  6.  The applicant contends he was misrepresented by legal counsel and according to Chapter 14 was denied the right to appear before a review Board.     

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: 041109
Discharge Received: 			   Date: 050107   Chapter: 4-2b, 4-24a(1)     AR: 600-8-24 
Reason: Unacceptable Conduct	   RE:     SPD: BNC   Unit/Location: HHC, 57th Signal Bn, APO AE 09342 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 040823, wrongfully disobeying a lawful command from a CPT (040424-040525), dereliction of duty by failing to remain with his platoon while preparing equipment for deployment to Iraq (031125), and wrongfully and dishonorably acquiring an Iraqi non-tactical vehicle and driving aimlessly around Victory base for an extended period of time (040509); 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:  25
Current ENL Date: 021003/OAD    Current ENL Term: 03 Years  ?????
Current ENL Service: 	02 Yrs, 03Mos, 05Days ?????
Total Service:  		09 Yrs, 08Mos, 14Days block 12d on the applicant's DD Form 214 total prior active service, reads 00 Yrs, 11 Mos, 18 Days.  However, this service could not be verified based on the available records.
Previous Discharges: 	USAR-950424-010601/NA
                                       USARCG-010602-010905/NA
                                       USAR-010906-021002/NA
Highest Grade: O-2		Performance Ratings Available: Yes    No 
MOS: 25A Signal General   GT: NA   EDU: BA Degree   Overseas: Korea/Southwest Asia   Combat: Iraq (040109-041208)
Decorations/Awards: AAM, NDSM, GWOTEM, GWOTSM, KDSM, ASR, OSR, ARCOTR

V.  Post-Discharge Activity
City, State:  Birmingham, AL 
Post Service Accomplishments: None Listed

 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 9 October 2004, the applicant was notified of initiation of elimination proceedings under the provisions of Chapter 4, paragraph 4-2(b) and 4-24a(1), AR 600-8-24, by reason of misconduct.  The applicant was directed to show cause for his retention in the Army for receiving a Field Grade Article 15 and a relief for cause Officer Evaluation Report.  He was advised that he could submit a written rebuttal, or resignation in lieu of elimination.  
       
       On 1 November 2004, the applicant voluntarily tendered his resignation under the provisions of Chapter 4, AR 600-8-24, in lieu of further elimination proceedings.  The applicant was a probationary officer and therefore not entitled to a Board of Inquiry.  
       
       On 9 November 2004, the Commander, Headquarters III Corps, APO AE, recommended approval of the applicant's request for resignation in lieu of elimination under the provisions of Chapter 4, AR 600-8-24, with a general, under honorable conditions discharge.  
       
       On 9 December 2004, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Ad Hoc Review Board, and directed that the applicant be discharged from the U.S. Army with a characterization of service of general, under honorable conditions.

       b.  Legal Basis for Separation:  
       Army Regulation 600-8-24 sets for the basic authority for Officer Transfers and discharges.  Chapter 4 outlines the policy and procedure for the eliminating of officers from the active Army for substandard performance of duty, misconduct, moral or professional dereliction, and the interest of national security.

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant's military records during the term of service under review, the issues and documents submitted with the application, the analyst determined that the evidence was not sufficiently mitigating to warrant an upgrade of the discharge under review. 
       
       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 Army Officers.  The applicant provided no corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  
       
       Issue (1) Rejected.  By his misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  Further, the analyst noted the the applicant's issue of injustice and that his command broke the law; however, 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.  

             Issue (2) Rejected.  The narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 4, paragraph 4-2(b) and 4-24a(1), AR 600-8-24.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Unacceptable Conduct," and the separation code is "BNC."  

            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.

           Further, if the applicant desires to rejoin the military, he should contact the local recruiter to determine his eligibility.  Those individuals can best advise a former service member as to the needs of the Army at the time. 

           Issues (3), (4) and (5)  Rejected.  The analyst noted the applicant's issues; however, the requests do not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing DD Form 149 regarding this matter.  An application for that Board can be obtained online or from the Veterans Administration.  

           Issue (6) Rejected.  Chapter 14, AR 635 -200, applies to enlisted separations only.  Although the insert that the applicant submitted references that an administrative separation board is authorized under Chapter 14, AR 635-200, if the Soldier is being considered for an under other than honorable conditions discharge or has more than six years of service, which is irrelevant in this case because he was a commissioned officer.

        Additionally, the applicant was discharged under the provisions of Chapter 4, paragraph 4-2(b), AR 600-8-24, by reason of misconduct.  Paragraph 4-20, AR 600-8-24, provides that a Reserve Commission Officer with less than five years of commissioned service is a probatrionary officer  and elimination under this paragraph does not require referral to a Board of Inquiry or a Board of Review unless an under other than honorable conditions discharge is recommended.  The evidence of record shows the applicant received a general, under honorable conditions discharge.

        Therefore, the analyst determined that the reason for discharge and the characterization of service, to include the separation (SPD) code 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: 4 June 2010         Location: Washingon, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: The applicant submitted a DD Form 149 and the following documents:  a Self-Authored Statement; DD Form 214, dated (050107); DA Form 2627 and Continuation Sheet (Record of Proceedings Under Article 15 UCMJ), dated 040823); Memorandum for Record, dated (040816); Memorandum for Record, dated (040519); Memorandum for Record, dated (040424); three (3) DA Forms 4856 (Developmental Counseling Form), dated (040515), (040312), (040312); Memorandum for Record, dated (040516); four (4) DA Forms 67-9 (Officer Evaluation Report), dated (020930), (040731), (030819), (031028); two (2) Memoranda for Record, dated (040312), (040312); Initiation of Elimination Letter, dated (041009); two (2) Request for Initiation of Officer Elimination;  Resignation in Lieu of Elimination Proceedings, dated (041101); Resignation Options, dated (041108); Information Paper on Chaper 14, AR 635-200; Memorandum for Record (Daily Activities); Memorandum for Record, dated (040311); Letter to Senator, dated (040913); Letter to ARBA, dated (100225);  

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
(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: None



































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 AR20090012543
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