Applicant Name:  ?????

Application Receipt Date: 2010/03/23	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he got out of the Army because he was told to tell the LT that he couldn't follow an unlawful order and he took it to heart. Plus he told them that he wanted to get out and they approved.

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: 090401
Discharge Received: 			   Date: 090430   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: B Company, 4th Battalion, 23rd Infantry Regiment, Fort Lewis, WA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 090414, was disrespectful toward a LT, his superior commissioned officer on or about (081203), disobeyed a lawful command from a LT, his superior commissioned officer on or about (081203), reduction to Private First Class (E-3), forfeiture of $433.00 pay per month for one month, extra duty and restriction for 14 days (CG)

Article 15, 080815, failed to go to his appointed place of duty on or about (080530), reduction to Private First Class (E-3), suspended, to be automatically remitted if not vacated on or before (080215), extra duty and restriction for 14 days (CG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 051019    Current ENL Term: 3 Years  20 weeks/The applicant extended his enlistment for 5 months on (070312) giving him a new ETS date: (090807). Also, the applicant required a moral waiver at the time of enlistment, which was approved on (051003).
Current ENL Service: 	3 Yrs, 6 Mos, 12 Days ?????
Total Service:  		3 Yrs, 6 Mos, 12 Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 13F10 Fire Support Spec   GT: 110   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: AAM (3), NDSM, GWTSM, ASR

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 25 March 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 on divers occasions failed to report to his appointed place of duty between on or about (071024-080530), disrespectful in language and deportment toward a SGT on or about (080331), dereliction of duty on or about (080509), lost his Night Vision Device, which was destroyed of a value of about $3,607.00 on or about (080917), disrespectful towards a 2LT, his superior commissioned officer on or about (080923), disrespectful towards SGT, a noncommissioned officer x 2 on or about (080930), disobeyed a lawful order from a SGT on or about (080930), disrespectful towards a 2LT, his superior commissioned officer on or about (080930), unlawfully struck a SPC on or about (081011), disrespectful towards a LT, his superior commissioned officer on or about (081201), and disobeyed a lawful command from a 1LT, his superior commissioned officer on or about (081202), with a general, under honorable conditions discharge. 
       
       He was advised of his rights.  On 27 March 2009, 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 9 April 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 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, the issue and documents submitted with the application, the analyst found no mitigating factors which 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 issue that he got out of the Army because he was told to tell the LT that he couldn't follow an unlawful order and he took it to heart.  Plus he told them that he wanted to get out and they approved.  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 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: 8 November 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 149 in lieu of a DD Form 293 dated 21 January 2010, and copies of documents from his Official Military Personnel File (OMPF) with various dates. 

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 AR20100011639
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