Applicant Name:  ?????

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

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: Arbitrary or capricious actions by his command, wants to rejoin.

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: 090115
Discharge Received: 			   Date: 090116   Chapter: 14-12c    AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: F Co, 1-34 IN Bn, Fort Jackson, SC 

Time Lost: None

Article 15s (Charges/Dates/Punishment): The unit commander states the applicant received a Field Grade Article 15 for violation of the UCMJ, Article 112a, wrongful use or possession of a controlled substance.  The Article 15 is not contained in the available record.?????

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 081014    Current ENL Term: 3 Years  32 weeks
Current ENL Service: 	00 Yrs, 03Mos, 03Days ?????
Total Service:  		00 Yrs, 03Mos, 03Days ?????
Previous Discharges: 	None
Highest Grade: E-1		Performance Ratings Available: Yes    No 
MOS: None   GT: 106   EDU: GED   Overseas: None   Combat: None
Decorations/Awards: None

V.  Post-Discharge Activity
City, State:  Zebulon, NC
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 15 January 2009, 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 assaulting and abusing his peers while in basic training, for not showing any changes in his behavior after being transferred to another unit as he continued to commit the same violations, and for having received a field grade Article 15, with an uncharacterized discharged.  He was advised of his rights.  On 15 January 2009, the applicant waived legal counsel, was advised of the impact of the discharge action, and 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 of the separation action with an uncharacterized discharge.  The separation authority waived further rehabilitative efforts and directed that the applicant be separated from the Army with an uncharacterized discharge.

       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.   The regulation further stipulates that if characterization of service under other than honorable conditions is not warranted for a soldier in entry-level status, the service will be described as uncharacterized.  

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records, and the issue submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  
       
       There was 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 determined that the applicant’s discharge was appropriate because the quality of service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  
       
       The separation authority approved the applicant's discharge as entry-level status, with the description of service as uncharacterized.  Army Regulation 635-200 provides in pertinent part, that a Soldier is in entry-level status for the first 180 days of continuous active duty.  The purpose of the entry-level status is to provide the Soldier a probationary period.  Soldiers who are found to lack the necessary motivation, adaptability, self-discipline, ability, or attitude to become productive Soldiers may be expeditiously separated while in entry-level status.  Army Regulation 635-200 also provides, except in cases of serious misconduct, that a Soldier’s service will be uncharacterized when the separation is initiated while the Soldier is in entry level status.  A general, under honorable conditions discharge is not authorized under ELS conditions.
       
       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 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.
         
       Additionally, notwithstanding the propriety of the applicant's discharge, the analyst determined that the applicant was incorrectly assigned a reentry eligibility (RE) code of “4”.  Therefore, the analyst recommends that the reentry eligibility code be administratively changed to RE-3.  If the applicant wants to reenlist, he should contact the local recruiter to determine his eligibility to reenlist.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate.   
       
       Except for the foregoing modification to the applicant's reentry eligibility (RE) code, the analyst found 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: 21 April 2010         Location: Atlanta, GA

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.  The Board determined the applicant was incorrectly assigned a reentry eligibility (RE) code of “4”.  Therefore, the Board directs that the reentry eligibility code be administratively changed to "3" (RE-3).
        
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: The Board determined the applicant was incorrectly assigned a reentry eligibility (RE) code of “4”.  Therefore, the Board directs that the reentry eligibility code be administratively changed to "3" (RE-3). 										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090012988
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