Applicant Name:  ?????

Application Receipt Date: 2011/09/08	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he requests an upgrade of his discharge to fully honorable.  He contends AR 635-200, paragraph 1-33, states Soldiers involved in the MEB/PEB, disposition through medical channels takes precedence over administrative actions.

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: 110322
Discharge Received: 			   Date: 110527   Chapter: 14-12b       AR: 635-200
Reason: Pattern of Misconduct	   RE:     SPD: JKA   Unit/Location: HSC, Hqs & Hqs Bn (Rear) (Provisional), Fort Drum, NY 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 110208, without authority, failed to go at the time prescribed to his appointed place of duty (110125); being disrespectful in language toward a noncommissioned officer (SGT) (110221); and drunk and disorderly, which conduct was of a nature to bring discredit upon the armed forces (110121); reduction to E-1, forfeiture of $733 pay x 2 months, extra duty for 45 days, restriction for 45 days and an oral reprimand, (FG).

100303, willfully disobeyed a lawful order from a noncommissioned officer, (SGT) by violating his physical profile (091111-091209); violated a lawful general order, by wrongfully smoking in the barracks, (092101-100110); and with intent to deceive, made a false official statement to SSG (100105); reduction to E-3, forfeiture of $423 pay, extra duty for 14 days, restriction for 14 days and an oral reprimand, (CG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  25
Current ENL Date: 080103    Current ENL Term: 04 Years  23 Weeks
Current ENL Service: 	03  Yrs, 04  Mos, 25  Days ?????
Total Service:  		03  Yrs, 04  Mos, 25  Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 92F10 Petroleum Supply Spec   GT: 119   EDU: HS Grad   Overseas: Korea   Combat: None
Decorations/Awards: NDSM, GWOTSM, KDSM, ASR, OSR

V.  Post-Discharge Activity
City, State:  
Post Service Accomplishments: None Listed



 


VI.  Facts, Circumstances, and Legal Basis for Separation
       a.  Facts and Circumstances:
       The evidence of record shows that on 22 March 2011, 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 violating a lawful order on divers occasions (091111-091209); violating a lawful general regulation on divers occasions (091201-100110); making a false official statement (100105); and receiving a Company Grade Article 15 (100309), with a general, under honorable conditions discharge.  He was advised of his rights.
       
       On 30 March 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and indicated he intended to submit a statement in his own behalf.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts.  The intermediate and senior intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge.  
       
       On 17 May 2011, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  Also, the separation approving authority determined that the applicant's medical condition was not the direct or substantial contributing cause of the conduct that led to the recommendations for administrative elimination.  In accordance with paragraph 1-33, RA 635-200, the applicant was not referred to a Physical Evaluation Board (PEB).
       
       The applicant's record contains a Military Police Report, dated 21 January 2011, with additional persons related to the report. 

       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 during the period of enlistment under review, the issues 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 applicant contends paragraph 1-33, AR 635-200, states Soldiers involved in the MEB/PEB, disposition through medical channels takes precedence over administrative actions.  Chapter 1, paragraph 1-33(2)e, AR 635-200, states that the General Court Martial Convening Authority (GCMCA), will determine whether a case is to be processed through medical disability channnels or under the administrative separation provisions and it will not be delegated.  
       
       On 17 March 2011, the GCMCA determined that the applicant's medical condition was not the direct or substantial contributing cause of the misconduct that led to to the recommendation for administrative elimination.  The GCMCA determined that the applicant would be separated administratively and the evidence of record shows that the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions.
       
       
       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.  
       
       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: 28 March 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated (110825); Letter, Orthopaedic Services, undated; Congressional Fax Transmittal Sheet, dated (110829); DA Form 3349 (Physical Profile), two (2) pages, dated (110121); Medical Evaluation Board Porceedings, three (3) pages, dated (110121); Memorandum, Rebuttal Matters to Administrative Discharge and Request to be Processed Through Medical Disability Channels, four (4) pages, dated (110331); Enlisted Record Brief (ERB), dated (100129); Excerpts from AR 635-200, pages 14-15, dated (091217); and a Memorandum, Rebuttal Matters, Proposed Separation Under AR 635-200, two (2) pages, dated (110404).     

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						
Board Vote:
Character - Change 0    No change 5
Reason -     Change 0    No change 5
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: No Change
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: None

XI.  Certification Signature
Approval Authority:




EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder
?????


























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 AR20110018254
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