Applicant Name:  ?????

Application Receipt Date: 2011/05/20	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that his battalion commander and former battalion CSM, reprised against him for filing protected communication.  He never had a pattern of misconduct in his 13 years in the Army.  He was promoted to SFC in due course and none of his NOCERS reflect the notion of a pattern of misconduct with the exception of his most recent NCOER that was extremely inconsistent with his previous NCOERS.  He never disrespected a commissioned officer and was simply punished for standing up for his rights as a NCO when he filed a congressional complaint.  He was singled out for deployment and received mobilization counseling.  He was wrongfully accused of requesting a five day pass, not responding to a counseling statement that never happened and was given seven counseling’s.  The applicant believes that all of this was as a result of filing a protected communication on 25 May 2010. He has a DOD Whistle Blower Reprisal investigation going on right now.  DOD sent him a letter stating there was sufficient evidence to warrant a full investigation and inquiry into the events that happened to him after he filed the protected communication.  He feels he had excellent service and helped others when they needed his help.  To make a long story short, it hurts him very bad what this has happened to him out of reprisal.  He has always been a great leader with model behavior and leadership attributes that other Soldiers could emulate. He embodied the "Warrior Ethos" and has always taken care of Soldiers and assisted the command when called.  He requests an upgrade of his discharge to honorable and a change to his reentry code in order to be retained in 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: NA
Discharge Received: 			   Date: 110506   Chapter: 14-12b       AR: 635-200
Reason: Pattern of Misconduct	   RE:     SPD: JKA   Unit/Location: HQ & HQ Company, 98th Expeditionary Signal Battalion, Mesa, AZ  

Time Lost: None

Article 15s (Charges/Dates/Punishment): None

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  29
Current ENL Date: Reenl/OAD/AGR/100526    Current ENL Term: 3 Years  ?????
Current ENL Service: 	0 Yrs, 11 Mos, 11 Days ?????
Total Service:  		12 Yrs, 6 Mos, 20 Days ?????
Previous Discharges: 	USAR 980427-980525/NA
                                       ADT    980526-981110/HD
                                       USAR 981111-010206/NA
                                       RA     010207-030812/HD
                                       RA     030813-050215/HD
                                       USAR 050216-100525/NA
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 91C30 Utilities Equipment Repairer   GT: 118   EDU: 2nd Year Coll/(14 Yrs)   Overseas: Germany (010222-031206), Southwest Asia   Combat: Iraq (030301-031114)
Decorations/Awards: ARCOM (2), AAM, GCMDL (2), NDSM, GWOTEM, GWOTSM, NCOPDR (2), ASR, OSR (2), ABRB, 

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 27 September 2010, the Major General, USAR Commander notified the applicant of initiation of separation action under the provisions of Chapter 13-2a(1)-6, Chapter 14-12b(2), and 14-12c under the provisions of AR 635-200.  He was advised of his rights.  On 2 October 2010, the applicant acknowledged receipt of the memorandum of notification.  On 12 October 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board and submitted a statement in his own behalf.  On 9 January 2011, the applicant was notified  by certified mail and through his attorney to appear before an administrative separation board.  On 21 January 2011, the administrative separation board met; the applicant appeared with counsel.  The board recommended that the applicant be separated from the service with a general, under honorable conditions discharge and did not recommend the separation authority suspend the applicant's recommended discharge IAW AR 635-200, Chapter 2, Section II.  On 3 February 2011, the 1LT, JA, Chief, Administrative Law; reviewed the administrative separation board proceedings and recommended approval of the board's findings and recommendation and issuance of a general, under honorable conditions discharge.  On 9 February 2011, the Major General, USAR, Commanding, approved the findings and recommendation of the board as supported by a preponderance of evidence 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 issues that his battalion commander reprised against him for filing protected communication.  However, the evidence of record shows that the Inspector General, Department of Defense, Memorandum dated 11 February 2011, responded to the applicant's allegations that he raised at the time of his separation and in the issues he submitted, that there was insufficient evidence to warrant further inquiry into the allegation that the command referred him for the mental health evaluation in reprisal for his protected communication, but the command based the referrals on its concerns about his conduct and behavior, which led to the separation action under review.  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 also contends that he wants to be reinstated in the Army.  However, the issue the applicant raises does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization. 
       
       The applicant further contends that he wants his narrative reason for separation changed.  The applicant was separated under the provisions of Chapter 14, paragraph 14-12-12b, AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct", and the separation code is "JKA."  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.  However, notwithstanding the propriety of the applicant's discharge, the analyst determined that the applicant was incorrectly assigned a reentry eligibility (RE) code of “4”.  Therefore, the analyst recommends the reentry eligibility code be administratively changed to RE-3.  Except for the foregoing modification to the applicant's reentry eligibility (RE) code, the analyst found that the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief.   
       
       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: 24 June 2011         Location: Chicago, IL

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: Online application dated 28 April 2011, self authored e-mail dated 23 May 2011, xerox copy of his 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, 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.  Further, notwithstanding the propriety of the applicant's discharge, the Board found that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as “4.”  In view of this error, the Board voted to administratively change block 27, reentry code to “3, as approved by the separation authority. 





 
        
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: The Board directs the Army Review Boards Agency Case Management Division (CMD) to correct block 27 to reflect the Reentry Eligibility Code “3”; and issue the applicant a new DD Form 214.										
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 

	CORRECTED COPY

ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20110010583
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