Applicant Name:  ?????

Application Receipt Date: 2011/11/04	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he requests for an upgrade and the reentry code changed because he feels he was not deserving of a general discharge.  He had a stellar record until his wife started cheating and lying—related charges were dismissed on post.  He was not ready to leave the Army.  He was not given a choice due to her actions.  He would like to return to the military life as he feels he still has a lot to give to his country.  In his self-authored statement, he states, in effect, that he also requests for possible reinstatement into his former rank in the military.  He reiterates that he had an outstanding record and never got into trouble.  He only had one Article 15 and that was due to his “wife.”  While stationed at Fort Campbell, he got married after returning from Afghanistan in 2009.  His wife started a lot of trouble and turned people he worked with against him with her lies and manipulating ways.  She was cheating on him with a civilian officer.  Together they falsified legal documents and put a domestic violence order on him, followed by his discharge out of the Army on October 1, 2010.  He collected evidence that proved that what they had done was falsified.  After going to the Chief of Police, they let go of the officer who was involved with his “wife.”  He filed for a divorce in August 2010.  She refuses to sign the papers.  She told his mother that she is making money off of the government from the lie that her and her ex-cop made up.  When it was proven that the officer lied, he was relieved of his duties as an officer of the law, and his “wife” and his 20-month-old son left for Texas.  He has not seen his son since because his “wife” keeps filing for an emergency protection order against him to keep him away even though he has never been to Texas in his life.  After that occurred, he lost everything.  It was hard to keep up with his bills, not to mention the apartment she abandoned in his name.  The entire debt is making it difficult to get back on his feet.  He is tired of struggling over someone else’s lies.  He wants his son in his life.  He would love to have his job and career back.  All he wants is to make right what was wronged.  He thanks the Board for its time.

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: 100719
Discharge Received: 			   Date: 101001   Chapter: 14-12b    AR: 635-200
Reason: Pattern of Misconduct	   RE:     SPD: JKA   Unit/Location: C Trp, 1st Sqdn, 61st Cav Regt, 4th BCT, 101 Airborne Division (Air Assault), Fort Campbell, KY 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 091027, disobeyed an NCO (090915) and 090918, with intent to deceive, made a false official statement to an NCO, forfeiture of $583, 14-day extra and restriction (suspended), (CG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: 070806    Current ENL Term: 5 Years  ?????
Current ENL Service: 	03 Yrs, 01 Mos, 27 Days ?????
Total Service:  		07 Yrs, 02 Mos, 05 Days ?????
Previous Discharges: 	ARNG (030728-050103) / NA
			   ADT (050104-050318) / HD
			ARNG (050317-060301) / HD
			      RA (060302-070805) / HD	
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 11B (Infantryman)   GT: 93   EDU: HS Equiv.   Overseas: SWA   Combat: Afghanistan (081010-090310); Iraq (061020-071019)
Decorations/Awards: ARCOM-2; AAM-2; AGCM; NDSM; ACM-CS; ICM-CS; GWOTSM; HSM; NPDR; ASR; OSR; NATO MDL; MUC

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 25 March 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 misconduct—for disobeying an order from a noncommissioned officer; making a false official statement; failed to report on (100218); failed to obey a military protective order against HK;, failed out of The Sabalauski Air Assault School; and having been picked up by the military police on three separate occasions for domestic assault, with a general, under honorable conditions discharge.  He was advised of his rights, to include, that he was entitled to a hearing before an administrative board if he had six or more years of active and reserve military service at the time of separation.  
       
       On 1 April 2010, the applicant consulted with legal counsel and was advised of the impact of the discharge action and submitted a statement in his own behalf.  Although the former Soldier had over six years of active and reserve military service and the Soldier was informed he was entitled to an administrative separation board if he had six years or more of active and reserve military service before the date of separation, the election portion of the Soldier’s response pertaining to having six years of total service on the date of recommendation for separation was crossed out with a handwritten entry of “NA” (not applicable) and “under 6 yrs.”  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts, indicating that the Soldier's "length of time in service" was five years.  The intermediate commander reviewed the proposed action and recommended approval of the separation with a general, under honorable conditions discharge.
       
       On 23 July 2010, although the separation authority indicated that the Soldier is entitled to a hearing before an administrative separation board, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.
       
       Furthermore, the record contains MP Reports No. 43651-2009-MPCO33, dated 21 August 2009; No. 43993-2009-MPC033, dated 5 September 2009; and No. 45973-2009-MPCO33, dated 14 December 2009.

       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 the entire applicant’s military records and the issue and documents submitted with the application, the analyst determined that the discharge is improper.  
       
       The analyst does not condone the applicant’s pattern of misconduct; however, the evidence of record supports a conclusion his discharge was improper.  Although the applicant consulted with a legal counsel, his total years of service were not taken into consideration because it was mistakenly determined that he did not have sufficient time to qualify for a separation board; therefore, he was not afforded the opportunity to have his case decided by an administrative separation board.  The applicant's military records indicate that he did, in fact, have more than six years of combined active and reserve military service at the time of initiation of his separation action.  The analyst noted that the Soldier's right to an administrative separation board is a fundamental due process provision based on constitutional considerations.  Accordingly, 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; thereby, his discharge warrants a change to the narrative reason for the discharge to Secretarial Authority with changes to the corresponding SPD Code to "KFF" and the reentry code to "1."  
       
       Furthermore, the analyst noted that the dates of the applicant's service in Iraq was incorrectly entered as "20081010-20090310" at Block No. 18 of the applicant's DD Form 214, while the correct period of his Iraq service is "20061020-20071019."  However, making corrections to the DD Form 214, 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. 
       
       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, under the provisions of Chapter 5, AR 635-200, with a corresponding SPD Code of “KFF,” and a reentry code (RE) of “1.”

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 9 May 2012         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated 2 November 2011 with self-authored statement; Letter in Support, undated; Police Dept Citizens Complaint documents, dated July and October 2010; Domestic Violence Order, dated 10 November 2010; Petition/Motion for Review of Visitation, dated 16 August 2011; Facebook documents with photographs; Lab report, dated 19 September 2010; Facebook document, dated 26 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 although the applicant consulted with a legal counsel, he was not afforded the opportunity for consideration of his case by an administrative separation board while he had over six 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.  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 with a separation code of "KFF" and a reentry code (RE) of “1.”  This action does not entail restoration of any grade.  







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

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: Secretarial Authority under the provisions of Chapter 5, AR 635-200, with a corresponding SPD Code of "KFF" (voluntary discharge)
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 AR20110022582
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