Applicant Name: ?????
Application Receipt Date: 2010/10/19 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: The applicant states, in effect, that he was given a Company Grade Article 15 due to a continuing dispute with his section sargent, who was an E-5 and very difficult to work for. He is trying to gain an education and cannot receive his VA benefits with a general discharge.
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: 010613
Discharge Received: Date: 010712 Chapter: 14-12c AR: 635-200
Reason: Misconduct RE: SPD: JKQ Unit/Location: Delta Company, 1-4 Air Defense Artillery, Germany, APO, AE
Time Lost: None
Article 15s (Charges/Dates/Punishment): 010516, wrongfully used marijuana x 2 between on or about (010102-010131), (010201-010223), wrongfully possessed some amount of marijuana x 2 between on or about (010102-010131), (010201-010223), reduction to Private (E-1), forfeiture of $521.00 pay per month for 2 months, extra duty and restriction for 45 days (FG)
Courts-Martial (Charges/Dates/Punishment): None
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 19
Current ENL Date: 990301 Current ENL Term: 4 Years ?????
Current ENL Service: 2 Yrs, 4 Mos, 12 Days ?????
Total Service: 2 Yrs, 4 Mos, 12 Days ?????
Previous Discharges: None
Highest Grade: E-3 Performance Ratings Available: Yes No
MOS: 14S10 Avenger Crewmember GT: 93 EDU: HS Grad Overseas: Germany (991018-010712) Combat: None
Decorations/Awards: ASR
V. Post-Discharge Activity
City, State: ?????
Post Service Accomplishments: The applicant states in his issue that he is a full time college student.
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 11 June 2001, 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 received a Field Grade Article 15 for wrongfully using and possessing marijuana, missing formation on numerous occasions, drinking on duty and violating pass privileges, with a general, under honorable conditions discharge. He was advised of his rights. On 13 June 2001, 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 29 June 2001, 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 applicants military records, the issue and document 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 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 that he was given a Company Grade Article 15 due to a continuing dispute with his section sergeant, who was an E-5 and very difficult to work for. The evidence of record shows that the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of nonjudicial punishment. The applicant failed to respond appropriately to these efforts. 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.
The applicant further contends that he is trying to gain an education and cannot receive his VA benefits with a general discharge. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.
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: 15 June 2011 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 7 October 2010, a copy of his schedule for the fall term of 2010.
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: 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 AR20100026172
______________________________________________________________________________
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