Applicant Name:  ?????

Application Receipt Date: 2009/09/01	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that upon the involuntary discharge from the service on 27 May 2007, he fought to stay in the service. He was charged with a civilian traffic crime with no conviction. He also defended himself against Army soldier, who was a PFC when he pointed a pistol at his face. He was not charged with a crime.

His commander still used the incident as grounds to terminate his obligation. He has been fighting to get back in the service for over two years now, due to the narrative and characterization of his discharge, he cannot get back in the service.  He was not given any paperwork stating why he was being discharge. 

The only piece of paperwork he has is a copy of an e-mail from a SFC, stating that the only grounds of separation his commander had at the time was pending traffic charges. He was told by the JAG office that he was guilty of a crime against a PFC, but since he worked as a Military Inntelligence Soldier, he was shown favortism by the commander, (though he failed a drug test for marijuana) since he was a mechanic in the unit.

His commander had a grudge against him and stated to him on several occasions that he did not like him or the fraternity he is part of. His First Sergeant, tried to throw him to the ground, but before doing so, pulled his pants down and when he bent down to pull his pants up, the 1SG tried to slam him, but he landed on top of him. The 1SG got very angry and struck him with a closed fist several times.  I am begging to at least help find a way to get back in the service.

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: 070405
Discharge Received: 			   Date: 070427   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: HQ & HQ Company, 111th Military Intelligence Brigade, Fort Huachuca, AZ 

Time Lost: None

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

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 061004    Current ENL Term: 3 Years  ?????
Current ENL Service: 	0 Yrs, 6Mos, 24 Days ?????
Total Service:  		4 Yrs, 4 Mos, 7 Days ?????
Previous Discharges: 	USAR 021220-030107/NA
                                       RA      030108-060107/HD
                                       USARCG 060108-061003/NA
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 63B10 Wheeled Vehicle Mech   GT: 108   EDU: GED Cert   Overseas: Korea (prior service)   Combat: None
Decorations/Awards: GCMDL, NDSM, GWOTSM, KDSM, ASR (prior service)

V.  Post-Discharge Activity
City, State:  ?????
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 on 5 April 2007, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14-12c, AR 635-200, by reason of misconduct-commission of a serious offense; in that he was flagged down for speeding on 061020, late for PT formation on 061024, and arrested by the Sierra Vista Police Department for DUI on 070209, with a general, under honorable conditions discharge. 
       
       He was advised of his rights.  The applicant consulted with legal counsel, was advised of the impact of the discharge action, 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 a general, under honorable conditions discharge.  On 20 April 2007, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions.
       
       The record contains a Military Police Report in reference to the applicant's offense of driving while under the influence of alcohol dated 10 February 2007, and a Sierra Vista Police Department Offense Report in reference to the DUI dated 15 February 2007. 

       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, but a general discharge 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, the issue and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  
       
       The analyst determined that 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 the 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 issues that his commander and 1SG had a grudge against him and gave an overview of the events that led up to his issues he raises, and that he would like to have his narative reason for separation changed so that he can reenlist in the Army. 
       
       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.  Retention is normally only considered in exceptionally meritorious cases when clearly in the best interests of the Army.  Because of the applicant's offenses outlined in his notification letter initiating action to separate him for misconduct commission of a serious offense, and that he was advised of the offenses by legal counsel of the offenses, the separation authority determined the specific offenses warranted separation. 
       
       The applicant was discharged under the provisions of Chapter 14-12c, AR 635-200, by reason of misconduct-commission of a serious offense; with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense) ” and the separation code is "JKQ." 
       
       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.  There is no provision for any other reason to be entered under this regulation.  
       
       Further, 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 desires 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. 
       
       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: 7 July 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: The applicant submitted a copy of his DD Form 214 for the period of service ending 27 April 2007, and a copy of an e-mail in reference to missing rap sheets dated 29 September 2006. 

















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: No Change										
RE Code: 
Grade Restoration:   No   Yes   Grade: No Change 
























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 AR20090015312
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