Applicant Name:  ?????

Application Receipt Date: 2012/03/12	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that his discharge was improper based on actions and events not necessarily made by him; however, at the time, it seemed to affect him at the precise time and place, that caused the said issue to derive from alcohol.  He questions that if that were the case, why wasn't an action taken to solve the issues.

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: 110110
Discharge Received: 			   Date: 110208   Chapter: 14-12a    AR: 635-200
Reason: Misconduct (Minor Infractions)	   RE:     SPD: JKN   Unit/Location: F Forward Support Company, 204th Brigade Support Battalion, 2nd Brigade Combat Team, Fort Carson, CO 

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:  19
Current ENL Date: 080103    Current ENL Term: 03 Years  21 Weeks
Current ENL Service: 	03 Yrs, 01 Mos, 06 Days ?????
Total Service:  		03 Yrs, 01 Mos, 06 Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 92F (Petroleum Supply Spec)   GT: 97   EDU: GED   Overseas: SWA   Combat: Iraq (080905-090814)
Decorations/Awards: ARCOM; 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 13 December 2010, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12a, AR 635-200, by reason of minor disciplinary infractions misconduct—for dereliction of duty; failure to report; and incapacitation for duty due to prior overindulgence of intoxicating liquor, with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 4 January 2011, a memorandum for record reflects that the applicant declined to sign an acknowledgment of consulting with a legal counsel and/or making an election of rights.  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 29 January 2011, the separation authority waived further rehabilitation and directed the applicant’s 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 the entire applicant’s military records and the issue and documents submitted with the application, the analyst found mitigating factors to recommend an upgrade of the characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority.  
       
       This recommendation was made after full consideration of his faithful and honorable service.  The evidence in this case supports a conclusion that the applicant’s discharge is now inequitable.  The overall length and quality of the applicant's service and the circumstances surrounding his discharge mitigated the discrediting entry in his service record.
       
       The evidence of record shows that the applicant made attempts to consult with a legal counsel regarding his involuntary separation action, but each time the office of the servicing military counsel were unable to provide proper counsel because the separation packet submitted by the applicant's command did not meet the minimum requirements of an involuntary separation action under the provisions of Army Regulation 635-200.  Thereafter, the applicant's command elected to document the command's actions by determining that the Soldier refused to sign his waiver/acknowledgement of rights and further determined to document such refusal on the memorandum for record, dated 5 January 2011, and to proceed with involuntarily separating the Soldier in accordance with paragraph 2-2(e)(3), AR 635-200.  Accordingly, the analyst determined that the applicant did not receive the appropriate legal counsel and did not, in fact, decline consulting a legal counsel, absent any record that shows the applicant, in fact, refused to consult with a legal counsel and/or refused to make his election of rights.  The analyst noted that consultation with legal counsel is a right and required under the provisions of Army Regulation 635-200, and denial of legal counsel at no fault of the applicant constituted a prejudicial error to the rights of the applicant.  
       
       In view of the foregoing, the analyst recommends 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 “LFF,” and a reentry code (RE) of “1,” and the characterization of service to fully honorable. 

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 17 August 2012         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated 25 November 2011; Memorandum for Record, Subject: Bar to Reenlist, dated 19 May 2010; Memorandum for Record, Subject: Chapter 14b Chapter Action, dated 5 January 2011; TDS, Senior Defense Counsel E-Mail, Subject: [the applicant's Chpater 14-12], dated 24 January 2011; 2nd page of rights election form; IG Action Request, dated 24 January 2011; DD Form 214 for service under current review. 

VIII.  Board Discussion, Determination, and Recommendation
The record reflects that the applicant did not receive legal counsel and did not decline consulting counsel.  The Board noted that consultation with legal counsel is a right and required under the provisions of Army Regulation 635-200.  The Board found that denial of legal counsel constituted a prejudicial error to the rights of the applicant.  Accordingly, the Board voted to change to the narrative reason of the applicant’s discharge to “Secretarial Authority,” under the provisions of Chapter 5, AR 635-200, with a corresponding SPD Code of “LFF,” and a reentry code (RE) of “1.”
        
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
Other: Change Separation Authority to AR 635-200, Paragraph 5-3 and the SPD Code to LFF
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 AR20120006004
______________________________________________________________________________


Page 3 of 3 pages