pplicant Name:  Mr. Emmett L. Thomas

Application Receipt Date: 2009/11/02	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states in effect:  "I recieved General under Honorable conditions Discharge, Based primarily on a charge of being AWOL in 2003. I have a letter from my Company Commander at the time stating that I was not guilty of being AWOL. I did recieve 2 Art 15's just before separation. I was suffering from PTSD, however this was not diagnosed until after seperation. I was discharged on my contract ETS date, and served my full contract obligation."

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: 040524
Discharge Received: 			   Date: 040708   Chapter: 14-12b    AR: 635-200
Reason: Misconduct	   RE:     SPD: JKA   Unit/Location: 8th Ord Co, Fort Bragg, NC 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 020621, disrespectful in deportment towards an NCO (020510), reduction to E-2 (suspended), forfeiture of $389 (suspended), 14 days of extra duty (CG)

030220, AWOL (030203-030204), oral reprimand (CG).  The record was corrected by unit commander’s memorandum dated 15 June 2004, which indicates the AWOL entry was incorrect as the applicant followed his squad leader’s instructions and was not AWOL.

031006, disobeyed the lawful order of an NCO on four occasions (030905), reduction to E-2 (suspended), forfeiture of $300 (suspended), 7 days of extra duty and restriction (CG)

031202, suspended sentence of reduction to E-2 and forfeiture of $300 was vacated for being disrespectful to an NCO (031103)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  26
Current ENL Date: 010709    Current ENL Term: 3 Years  ?????
Current ENL Service: 	03 Yrs, 00Mos, 00Days ?????
Total Service:  		06 Yrs, 04Mos, 26Days ?????
Previous Discharges: 	ARNG 960604-010708/HD
                                       OAD 960604-970513/HD (Concurrent Service)
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 55B10/Ammunition Spc   GT: 107   EDU: HS Grad   Overseas: SWA   Combat: Afghanistan (030410-030514)
Decorations/Awards: AAM, NDSM, GWOTEM, GWOTSM, ASR

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 10 May 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct for receiving three Articles 15 for being disrespectful to an NCO (020621), for being AWOL (030226), for disobeying the lawful orders of an NCO on four occasions (031006), and for having the suspended sentence in one of the Articles 15 vacated for disrespect to an NCO (031202), with an under other that honorable conditions discharge.  He was advised of his rights.
       
       On 10 May 2004, 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 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 commanders reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.  On 10 June 2004, the applicant was notified that he would appear before an administrative separation board.
       
       On 16 June 2004, the applicant once again, 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 general, under honorable conditions 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 a general, under honorable conditions discharge.  
       
       On 17 June 2004, the separation authority approved the conditional waiver request, waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions.

       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 issues 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 his repeated incidents of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  
       
       The applicant correctly revealed that his period of AWOL (030203-030204) found in his records, and for which he received a company grade Article 15 was not to be considered as AWOL.  However, this was corrected by a unit commander’s memorandum which was also found in the OMPF.  Notwithstanding this error, the analyst concluded the rights of the applicant were not prejudiced by the error on file in this case.  Department of Defense Directive 1332.28 stipulates that a discharge is proper unless the error was a prejudicial error.  The applicant had a record of misconduct and substandard performance of duty with few significant favorable entries in his record.  The evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made.  
       Furthermore, the record does not support the issue that the applicant suffers from Post Traumatic Stress Disorder and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition.  
       
       Additionally, the applicant contends he was discharged on his ETS date and served his full contract obligation.  However, the record indicates his repeated incidents of misconduct led his unit commander to initiate the elimination action before the applicant’s ETS.  The analyst found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       Therefore, the analyst determined 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: 12 May 2010         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 214, unit commander's memorandum dated 15 June 2004, character reference letter.

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: 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 AR20090019096
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