Applicant Name:  ?????

Application Receipt Date: 2012/06/01	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, with all due respect to his former unit and commander, he feels that he was misjudged as a Soldier and did not do anything so terrible as to be discharged an other-than-
honorable.  His unit was in Iraq and he was eager to join them but he found out his commander did not want him there based on the false accusation that he was a “trouble maker."  He takes full responsibility for his actions but he feels he was “picked on” while on rear detachment.  Since his discharge, he has been an outstanding member of society and he only wishes to have access to the benefits he paid into in order to further his education. 

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: 080318
Discharge Received: 			   Date: 080402   Chapter: 14-12c (2)       AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: B Company, 2d Brigade Combat Team (Rear)(Provisional), Fort Campbell, KY. 

Time Lost: The unit commander's memorandum of notification of intent to  separate indicates the applicant was AWOL for 31 days (070910-071010).  However, the lost time was not annotated in block 29 on the DD Form 214.  

Article 15s (Charges/Dates/Punishment): 071029, failed to go to his appointed place of duty at the prescribed time, reduction to E-2, suspended, forfeiture of $357.00 pay per month for one month, suspended, and 14 days restriction and 14 days extra duty. CG 

080111, wrongfully used marijuana (071204), reduction to E- 1, forfeiture of $815.00 pay per month for 2 months, 45 days restriction and 45 days extra duty. (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 060110    Current ENL Term: 03 Years  22 weeks
Current ENL Service: 	02 Yrs, 02 Mos, 23 Days ?????
Total Service:  		02 Yrs, 02 Mos, 23 Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 92F10 Petroleum Supply Specialist   GT: 100   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 by the applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 18 March 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c (2), AR 635-200, by reason of commission of a serious offense for being AWOL (070910-071010) and testing positive for marijuana use (071204), with an under than honorable conditions discharge.  He was advised of his rights.  
       
       The record is void of the applicant's Election of Rights memorandum; 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 and the analyst presumes government regularity.    
       
       The separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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 being absent 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 issue and documents he submitted, the analyst determined that the discharge is improper.    
       
       The applicant was notified under Board Procedures, AR 635-200, and the final decision for his characterization of service was to be made by the General Court Martial Convening Authority (GCMCA).  
       
       A legal review indicates that the Rear Commander, 101st Airborne Division (Air) (Assault) (Rear) (Provisional), Fort Campbell, Kentucky, did not have the authority to approve the Chapter 14 and direct the issuance of an under other than honorable conditions discharge because he was not delegated the authority of a General Court Martial Convening Authority.  
       
       In view of the foregoing, the analyst determined that the discharge was improper and 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.  This action does not entail a restoration of grade.   
       
       
       

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 31 October 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: An online DD Form 293 and DD Form 214

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 improper.  The applicant was notified under Board Procedures, AR 635-200, the final decision for his characterization of service was to be made by the General Court Martial Convening Authority (GCMCA).  The record shows that the Rear Commander, 101st Airborne Division (Air) (Assault) (Rear) (Provisional) Fort Campbell, Kentucky, did not have such authority.  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.  This action entails a change to the reentry eligibility (RE) code to 3.  




























        
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 Provision of Chapter 5, AR 635-200, with a               corresponding SPD Code of JFF (Involuntary Discharge).
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




JOSEPH M. BYERS
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 AR20120010407
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