Applicant Name:  ?????

Application Receipt Date: 2010/08/12	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant, states in effect, that there were mistakes in his discharge process.  He takes full responsibility for the actions leading to his discharge. He states that given a chance he can now successfully fulfill a term of service with the Army.

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: 081007
Discharge Received: 			   Date: 081110   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: 11th QM, Ft. Bragg, NC 

Time Lost: AWOL x4 for 29 days. (071224-080106, 080119-080122, 080911-080914, 080917-080923), military confinement 23 days (080929-081021). Total time lost 52 days. Mode of return unknown.

Article 15s (Charges/Dates/Punishment): 080114, AWOL (071224-080107), reduction to E-1, (suspended), forfeiture of $312, extra duty and restriction for 7 days (CG)

080417, suspension vacated of above, failed to go at the time prescribed to your appointed place of duty(080420), to wit extra duty, reduction to E-1 and forfeiture of $312.

080417, failed to go at the time prescribed to your appointed place of duty(080308),  reduction to E-1, (suspended), 14 days extra duty and restriction (CG)

080626, failed to go at the time prescribed to your appointed place of duty, accountability formation(080609), foreiture of $673, (suspended), 45 days extra duty (FG).

Courts-Martial (Charges/Dates/Punishment): 081007, SCM, AWOL (080911-080917 & 080917-080924), Disobeyed a lawful command x2 from 1LT (080924), disobeyed a lawful order from a SGT(080912), made a false statement to a SGT(080826), as a result of wrongful previous overindulgence in intoxicating liquor incapacitated for the proper performance of his duties (080807), forfeiture of 2/3 pay for one month and confinement for 30 days.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 070320    Current ENL Term: 3 Years  (with moral waiver for BN misdemeanor)
Current ENL Service: 	1 Yrs, 6Mos, 0Days ?????
Total Service:  		1 Yrs, 6Mos, 0Days ?????
Previous Discharges: 	None
Highest Grade: E-2		Performance Ratings Available: Yes    No 
MOS: 92R1P Parachute Rigger   GT: NIF   EDU: GED   Overseas: None   Combat: None
Decorations/Awards: GWOTSM, ASR

V.  Post-Discharge Activity
City, State:  Arcadia, CA
Post Service Accomplishments: None provided by the applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 7 October 2008, 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 two periods of AWOL (080911-080917 & 080917-080924),failed to report for duty on numerous occasions, failed to obey lawful commands and orders, made false official statements, and wrongfully indulged in intoxicating liquor that incapacitated him for the proper performance of his duties, with an under other than honorable conditions discharge.  He was advised of his rights.  
       
       On 22 October 2008, the applicant declined the opportunity to consult with legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to 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 commander reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.  
       
       On 24 October 2008, the separation authority waived further rehabilitative efforts and directed the applicant be discharged with a characterization of service of under other than honorable conditions.
       
       The record contains an Incident Report dated 080807.

       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 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 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.  By the misconduct, the applicant diminished the quality of the former Soldier’s service below that meriting a fully honorable discharge.  
       
       The applicant contends that he was unjustly and unfairly discharged.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the applicant produced any evidence or documentation to support the contention that he was unjustly discharged.  In fact, the applicant’s three Articles 15 under the Uniform Code of Military Justice, a Summary Court-Martial, and two negative counseling statements justify a pattern of misconduct.  The applicant’s statement alone does not overcome the government’s presumption of regularity in this case.  
       
       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, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “3.”  If reenlistment is desired, the applicant should contact the local recruiter to determine 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.  
       
       Further, the analyst noted the applicant's issue regarding pay issues, the MGIB, accounts of AWOL status and lost time; however, the issue the applicant submitted is not a matter on which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion relating to the discharge process nor is it associated with the discharge at the time of issuance.  
       
       Finally, the applicant contends that the narrative reason for his discharge should be changed.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with an under other than 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.  
       
       In view of the foregoing, 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: 23 February 2011         Location: Dallas, TX

Did the Applicant Testify?  Yes     No  

Counsel:  [ redacted ]

Witnesses/Observers: None 

Exhibits Submitted: 201 Summary Packet

VIII.  Board Discussion, Determination, and Recommendation
          After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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 1    No change 4
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: ?????






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 AR20100021566
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