Applicant Name:
Application Receipt Date: 2011/09/16 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: The applicant states, in effect, that he was treated disrespectfully by being spit on in the face and made to feel degraded, inferior, and humiliated.
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: 101122
Discharge Received: Date: 101210 Chapter: 14-12b AR: 635-200
Reason: Pattern of Misconduct RE: SPD: JKA Unit/Location: 514th Maintenance Company, 548th Combat Sustainment Support Battalion, Fort Drum, NY
Time Lost: None
Article 15s (Charges/Dates/Punishment): 100917, with intent to deceive made a false official statement to an NCO (100731) - reduced to E-3, forfeiture of $448 (suspended); 14-day extra duty and restriction; and an oral reprimand, (CG)
101019, wrongfully communicated a threat to injure someone in his squad by stabbing or shooting (100928) - the suspended punishment regarding the forfeiture of $448 was vacated, (CG)
Courts-Martial (Charges/Dates/Punishment): None
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 22
Current ENL Date: 070808 Current ENL Term: 4 Years ?????
Current ENL Service: 03 Yrs, 04 Mos, 03 Days ?????
Total Service: 03 Yrs, 04 Mos, 03 Days ?????
Previous Discharges: None
Highest Grade: E-4 Performance Ratings Available: Yes No
MOS: 91G (Fire Control Repairer) GT: 100 EDU: 16 Years Overseas: SWA Combat: Iraq (090521-100501)
Decorations/Awards: AAM; NDSM; ICM-CS; GWOTSM; ASR; OSR
V. Post-Discharge Activity
City, State: ?????
Post Service Accomplishments: None
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 19 November 2010, 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 misconductfor receiving a CG Article 15 for making a false official statement (100917); a supplementary Article 15 for communicating a threat (101019); and for receiving numerous counselings for misconduct that was prejudicial to good order and military discipline, with a general, under honorable conditions discharge. He was advised of his rights.
On 29 November 2010, the applicant waived consultation with a legal counsel and indicated that he understood the impact of the discharge action, 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 action and recommended approval of the separation with a general, under honorable conditions discharge.
On 2 December 2010, the separation authority waived further rehabilitation and directed the applicants discharge 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, and the issue 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 pattern of misconduct, the applicant diminished the quality of the former Soldiers 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.
Furthermore, 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 non-judicial punishment. The applicant failed to respond appropriately to these efforts.
Accordingly, 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 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, D.C.
Did the Applicant Testify? Yes No
Counsel: Yes, Director, Wyoming County Veteran Services, 26 Linwood Ave. Suite #2, Warsaw, NY 14569
Witnesses/Observers: NA
Exhibits Submitted: DD Form 293, undated.
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
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: NA
Other: NA
RE Code:
Grade Restoration: No Yes Grade: NA
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 AR20110019306
______________________________________________________________________________
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