Applicant Name:  ?????

Application Receipt Date: 2012/02/16	Prior Review:     Prior Review Date: 2011/07/27   

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant's counsel states, in effect, that the applicant was separated without due process and without any consideration of his PTSD or other medical problems.  The applicant agreed to waive his rights to an administrative separation board; however, he did not agree to waive his rights to legal counsel and his right to submit matters to the convening authority while pending the separation action.  The applicant's command did not afford him the rights to which he was entitled and separated him contrary to Army regulations.  His counsel further contends the UOTH is invalid and should be upgraded to an honorable 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: 100219
Discharge Received: 			   Date: 100308   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: C Co, 2/22d Inf Regt, 1st BCT, 10th Mount Div, Fort Drum, NY 

Time Lost: None

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

Courts-Martial (Charges/Dates/Punishment): 100122, SCM, failing to register his handgun, wrongfully discharging a firearm and wrongfully possessing a handgun (090926), reduction to E1 and forfeiture of $724.00.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 070417    Current ENL Term: 03 Years  16 Weeks
Current ENL Service: 	02 Yrs, 11 Mos, 26 Days ?????
Total Service:  		02 Yrs, 11 Mos, 26 Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 11B10/Infantryman   GT: 91   EDU: GED   Overseas: SWA   Combat: Iraq (070907-081030)
Decorations/Awards: AAM, NDSM, ICM-CS, GWOTSM, 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 19 February 2010, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct for commission of a serious offense for receiving a Summary Court-Martial (100122), pleading and being found guilty of failing to register his handgun, willfully and wrongfully discharging a firearm in the on-post quarters of another Soldier, and knowingly and wrongfully possessing a weapon, with an under other than honorable conditions discharge.  He was advised of his rights.  
       
       On 23 February 2010, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to appear before an administrative separation board, and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the Army.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.
       
       On 3 March 2010, the separation authority directed the applicant be discharged with a characterization of service of under other than honorable conditions.
       
       The applicant's record contains a Military Police Report, dated 26 September 2009.
       
       The analyst noted that on the applicant's DD Form 214 block 27, reentry eligibility (RE) code reads "4." According to AR 635-5-1, Separation Program Designator (SPD)/Reentry (RE) Codes Cross-Reference Table, requires a reentry eligibility (RE) code of "3."  The Army Review Board Agency Case Management Division corrected block 27 to reflect Reentry Eligibility Code "3", and issued a new DD Form 214.

       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, and the issues and documents he submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  
       
       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 his 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 diagnosis of PTSD outlined in documents with his application.  However, in review of the applicant’s entire service record, the analyst found that this medical condition did not overcome the reason for discharge and characterization of service granted, the applicant fully understood the difference between right and wrong.  Further, eligibility for veteran's benefits to include educational benefits under the 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.
       
       
       
       The analyst also noted that the Army Discharge Review Board determined on 27 July 2011, that an administrative error was made and voted to change block 27 (Reentry Code) of the applicant's DD Form 214 to reflect Reentry Eligibility Code "3".
       
       Furthermore, the applicant's counsel contends that the applicant's discharge was unjust because he did not do what he was discharged for.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that he was unjustly treated.  The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence in support of his request for an upgrade of his discharge.
       
       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: 29 August 2012         Location: Chicago, IL

Did the Applicant Testify?  Yes     No  

Counsel: yes (redacted)

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293 dated 31 January 2012, DD Form 214, physician's letter dated 26 January 2011, various OMPF case documents.

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.
        
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: NA


XI.  Certification Signature
Approval Authority:




ARCHIE L. DAVIS III
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 AR20120003607
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