IN THE CASE OF:  	

      BOARD DATE:  	29 May 2013

      CASE NUMBER:  	AR20130001732
___________________________________________________________________________

Board Determination and Directed Action


1.  After carefully examining the applicant’s record of service during the period of enlistment under review, and considering the Discussion and Recommendation which follows, the Board determined the discharge was improper.  

2.  The evidence indicates the applicant was entitled to an administrative separation board because he had over 6 years of total active and reserve military service at the time of initiation of the separation action.  An administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects the applicant did not receive an administrative separation board and did not waive it either.  Denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper.  

3.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority.  





      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests an upgrade of his discharge from general, under honorable conditions to honorable.

2.  The applicant states, in effect, that the offense he was discharged for was rectified with the company.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		17 January 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			6 June 2012
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 14-12c 						JKQ, RE-3        
e. Unit of assignment:			B Battery, 1st Battalion, 7th Field Artillery, 2nd Heavy 						Brigade Combat Team, 1st Infantry Division, Fort 						Riley, Kansas
f. Enlistment Date/Term:		19 February 2009, 5 years 
g. Current Enlistment Service:	03 years, 03 months, 18 days
h. Total Service:			06 years, 00 months, 22 days
i. Time Lost:				6 days 
j. Previous Discharges:		USAR (060515-070806), NA									RA (070807-090218), HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	92Y10, Unit Supply Specialist
m. GT Score:				105
n. Education:				GED
o. Overseas Service:			SWA
p. Combat Service:			Iraq x 2 (081008-090918 and 101113-111020)
q. Decorations/Awards:		ARCOM-2, AGCM, NDSM, ICM-w/CS-2, GWOTSM 						NPDR, ASR, OSR-2, CAB, MUC-2
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes	
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Army Reserve on 15 May 2006 for a period of 8 years.  On
7 August 2007, he enlisted in the Regular Army for a period of four years and 10 weeks.  
On 19 February 2009, he reenlisted for 5 years, and was 19 years old at the time.  The applicant served in Iraq two times and earned two ARCOMs, an AGCM, and a CAB.



SEPARATION FACTS AND CIRCUMSTANCES

1.  The record shows that on 31 May 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), specifically for:

      a. failing to go at the time prescribed to his appointed place of duty on multiple 		occasions (100802, 111220, 120126, 120201, 120430, 120509, and 120521);   	 	b. indebtedness by not paying for his rental vehicle, 
      c. having his vehicle repossessed; 
      d. failing to provide financial support in accordance with AR 608-99.

2.  Based on the above misconduct the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.  

3.  On 1 June 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action and indicated he would not submit a statement on 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 with a general, under honorable conditions discharge.  

4.  On 4 June 2012, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The applicant was discharged on 6 June 2012, for misconduct (serious offense), under the provisions of AR 635-200, Chapter 14-12c, with an SPD code of JKQ and a RE code of 3.

6.  The applicant’s record shows 6 days of unauthorized absences or time lost time 
(16 September 2008 through 21 September 2008).  The mode of return is unknown.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  A Field Grade Article 15 was imposed on 14 February 2012, for failing to go at the time prescribed to his appointed place of duty x 2 (120126 and 120201).  His punishment consisted of reduction to the grade of E-3, forfeiture of pay in the amount of $250.00 and 14 days of extra duty.  

2.  Twelve negative counseling covering the period 2 August 2010 through 21 May 2012, for failing to go to his appointed place of duty; insubordinate conduct towards a warrant officer, a NCO and a commissioned officer; failing to follow orders; failing to maintain his personal clothing and the Army Service Uniform; failing to provide spousal support; having his car repossessed; failing to pay his rental car fees and having a pattern of misconduct.  

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided a DD Form 293 and a DD Form 214.

POST-SERVICE ACTIVITY: 

None provided with the application.

REGULATORY AUTHORITY

1.  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.   

2.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

3.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.

2.  After a careful review of all the applicant’s military records, the issue and documents submitted with the application, the discharge is improper.  

3.  The evidence of record confirms the applicant consulted with legal counsel and was incorrectly advised that if he had less than six years of total active and reserve military service at the time of separation and was not being considered for an under other than honorable conditions discharge, he was not entitled to an administrative separation board.  However, Army Regulation 635-200, paragraph 2c(4), states that commanders will include the Delayed Entry Program (DEP) time when calculating creditable service to determine a Soldier’s right to an administrative separation board.  The applicant had over 6 years of active and inactive service which included DEP time in the USAR.  Moreover, an administrative separation board is a right and required under the provisions of the governing regulation. The record reflects the applicant did not receive an administrative separation board and denial of such a board constituted a prejudicial error to the rights of the applicant and as a result the discharge is improper.  

4.  The records show the proper discharge and separation procedures were not followed in this case.  

5.  Therefore, the discharge being improper, recommend the Board grant full relief in the form of an upgrade of a change to the characterization of service to “Honorable,” and a change to the narrative reason for separation to “Secretarial Authority,” under the provisions of Chapter 5, Paragraph 5-3, AR 635-200, with a corresponding separation (SPD) code of "JFF."  This action does not entail a change to the reentry eligibility (RE) code; however, the Board can consider it. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Record Review  	Date: 	29 May 2013		Location: Washington, DC

Did the Applicant Testify?   No

Counsel:  None

Board Vote:
Character  	Change:  5	No Change:  0
Reason	Change:  5	No Change:  0
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	Honorable
Change Reason to:			Secretarial Authority with corresponding SPD code of JFF
Change RE Code to:		1
Grade Restoration to:		No Change
Change Authority for Separation:	AR 635-200
Other:					NA







Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20130001732



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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