Applicant Name:  ?????

Application Receipt Date: 2010/09/23	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he wants an upgrade because he served his country and went to war. He is trying to go to school and get his VA benefits, but he needs his discharge changed. His discharge was to be upgraded after 6 months. He served in OIF, but he can't get chapter 33 benefits because his discharge isn't honorable, and would like it changed to honorable so that he can go to school to better his education.

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: NIF
Discharge Received: 			   Date: 050318   Chapter: 14-12b       AR: 635-200
Reason: Misconduct-Pattern of Misconduct	   RE:     SPD: JKA   Unit/Location: Rear Detachment Company, 2nd Battalion, 7th Infantry, 1st Brigade, 3rd Infantry Division, Fort Stewart, GA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 041216, wrongfully used marijuana between on or about (040903-041004), reduction to Private (E-1), forfeiture of $596.00 pay per month for two months, suspended, to be automatically remitted if not vacated before (050616), extra duty and restriction for 45 days. (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: 030129    Current ENL Term: 3 Years  ?????
Current ENL Service: 	2 Yrs, 1 Mos, 20 Days ?????
Total Service:  		7 Yrs, 1 Mos, 28 Days ?????
Previous Discharges: 	USAR 971107-980120/NA
                                       RA      980121-010120/HD
                                       USARCG 010121-030128/NA
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 19K10 M1 Armor Crewmember   GT: 87   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq/Kuwait (030125-030729)
Decorations/Awards: NDSM, GWOTEM, GWOTSM, ASR, PUCA

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 the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14-12b, AR 635-200, by reason of a pattern of misconduct; in that he received a Field Grade Article 15 on (041216 for failing a urinalysis on (041004), for wrongful use of marijuana, and then failed another urinalysis on (041102), 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 4 March 2005, 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 CID Report of Investigation in reference to the applicant's offense of wrongful use and possession of marijuana dated 4 November 2004.

       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 analyst determined that the discharge is improper.  
       
       The evidence of record shows that the applicant consulted with legal counsel and was advised that if he had over six years or more of total active and reserve military service at the time of initiation of separation action, he was entitled to have his case heard by an administrative separation board.  The record shows that the applicant had over six years of military service and was entitled to an administrative separation board when he consulted with legal counsel; however, no where on the election of rights form was there a provision for the applicant to request or waive his rights to an administrative separation board, even though he was advised of that right.  The evidence of record further shows that he did not waive that right.  The analyst noted that an administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects that the applicant did not receive an administrative separation board.  The analyst determined that denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper.  
       
       In view of the foregoing, the analyst recommends to the Board that relief be granted in the form of an upgrade of the characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority.  

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 8 June 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293 dated 16 September 2010.





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 and is improper.  The evidence of record shows that the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board and had over 6 years of total active and reserve military service at the time of initiation of separation action.  The Board noted that an administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects that the applicant did not receive an administrative separation board and did not waive it.  The Board determined that denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority.  
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
Reason -     Change 5    No change 0
(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: Secretarial Authority under the Provisions of Chapter 5-3, AR 635-200, with a corresponding SPD Code of "JFF."
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 AR20100024472
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