Applicant Name: ?????
Application Receipt Date: 2009/11/08 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: The applicant states, in effect, that he was never afforded the opportunity to talk to a lawyer while he was being chaptered. His chain of command was pushing his chapter as well.
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: 091013
Discharge Received: Date: 091022 Chapter: 14-12c AR: 635-200
Reason: Misconduct (Serious Offense) RE: SPD: JKQ Unit/Location: HQ & HQ Battery, 2nd Battalion, 6th Air Defense Artillery Brigade, Fort Bliss, TX.
Time Lost: None
Article 15s (Charges/Dates/Punishment): 090806, failed to go to his appointed place of duty on or about (090725); as a result of wrongful previous overindulgence in intoxicating liquor or drugs; incapacitated for the proper performance of his duties on or about (090725); reduction to Sergeant (E-5); forfeiture of $1,414.00 pay per month for 2 months; suspended, to be automatically remitted if not vacated before (100203); extra duty and restriction for 45 days (FG)
Article 15, 091004, failed to go to his appointed place of duty on or about (091002); disobeyed a lawful order from SFC, a senior noncommissioned officer on or about (090831); with intent to deceive, made to 1SG an official statement, which was false on or about (090831); driving while under the influence of alcohol on or about (091002); broke restriction x 2 on or about (090830); (090905); reduction to (E-4); forfeiture of $1,109 pay per month for two months; extra duty and restriction for 45 days (FG)
The suspension of the punishment of reduction to SGT (E-5) imposed on (090806) was vacated, effective (091005) based on the following offense: failing to go to his appointed place of duty on or about (091002).
Courts-Martial (Charges/Dates/Punishment): None
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 31
Current ENL Date: Reenl/070717 Current ENL Term: Indefinite Years ?????
Current ENL Service: 2 Yrs, 3 Mos, 6 Days ?????
Total Service: 13 Yrs, 11 Mos, 1 Days ?????
Previous Discharges: RA 951122-980111/HD
RA 980112-030212/HD
RA 030213-050906/HD
RA 050907-070716/HD
Highest Grade: E-6 Performance Ratings Available: Yes No
MOS: 14J10 AD C4I TOC OP/MNT & 14T10 Patriot Oper/Maint GT: 89 EDU: HS Grad Overseas: Germany (960519-000505) & Korea (040128-060225) Combat: None
Decorations/Awards: ARCOM, AAM (3), GCMDL (4), NDSM (2), GWOTSM, KDSM, NCOPDR, ASR, OSR (2)
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 13 October 2009, 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 did on divers occasions failed to obey lawful orders and commands and made false official statements, 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 did not submit 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 14 October 2009, the separation authority 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 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 applicants 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.
The analyst determined that the applicants 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 applicants service mitigated the misconduct or poor duty performance.
The analyst noted the applicant's issue that he was never afforded the opportunity to speak to a lawyer while he was being chaptered, and that his chain of command was pushing his chapter as well. The evidence of record shows that the applicant consulted with an officer of the Judge Advocate General's Office indicating that he personally made the choices indicated on the elections of rights form and authenticated the document with his signature. Further, 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.
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: 27 August 2010 Location: Washington, DC
Did the Applicant Testify? Yes No
Counsel: None
Witnesses/Observers: NA
Exhibits Submitted: DD Form 293 dated 2 November 2009.
VIII. Board Discussion, Determination, and Recommendation
After carefully examining the applicants record of service during the period of enlistment under review and considering the analysts 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: 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 AR20090020792
______________________________________________________________________________
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