IN THE CASE OF:  	Mr. 

      BOARD DATE:  	4 October 2013

      CASE NUMBER:  	AR20130006180
___________________________________________________________________________

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 not properly advised of his right to counsel at the time of initiation of the separation action.  The Board noted that his right to being afforded the opportunity to consult with a legal counsel is required under the provisions of Army Regulation 135-178 and Army Regulation 635-200, and the record reflects the applicant did not receive the right to consult with a legal counsel and did not waive it.  Denial of that right constituted a prejudicial error to the rights of the applicant and the discharge is improper.  Accordingly, the Board voted to recommend through the Chief, National Guard Bureau to the Adjutant General, State of Illinois, to consider for a change to the applicant’s discharge by the Adjutant General, State of Illinois, with issuance of a new NGB Form 22a, as follows:

	a.	change characterization of service to “Honorable,” 
	b.	change Authority and Reason to Chapter 14, AR 135-178, 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 to upgrade his characterization of service from general, under honorable conditions to fully honorable. 

2.  The applicant states, in effect, he is requesting an upgrade for having served honorably, completing a combat tour in Afghanistan, and being discharged as an E-4, all indicating he was a good Soldier.  He never received an Article 15 or committed any crime.  The issue that led to his discharge was attributed to being injured and on medical profile.  Accordingly, it is unfair he received a general, under honorable conditions discharge for an honorable service. 

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	7 March 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	28 October 2011
	d.	Reason/Authority/SPD/RE Code:	Unsuitability, NGR 600-200, NA, RE-3
	e.	Unit of assignment:	Company C, 1st Battalion, 178th Infantry, IL ARNG, 
			Kankakee, IL
	f.	Current Enlistment Date/Term:	18 May 2006, 8 years 
	g.	Current Enlistment Service:	2 years, 2 months, 18 days
	h.	Total Service:	5 years, 5 months, 11 days
	i.	Time Lost:	None
	j.	Previous Discharges:	IADT      (060905-061214) / HD
			ILARNG (061215-080820) / NA
			IADT      (080821-090811) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	11B10, Infantryman 
	m.	GT Score:	102
	n.	Education:	HS Graduate 
	o.	Overseas Service:	SWA
	p.	Combat Service:	Afghanistan (dates NIF)
	q.	Decorations/Awards:	ARCOM; NDSM; ACM-CS; GWOTSM; AFRM-MD; 
			ASR; NATO MDL; CIB
	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 National Guard on 18 May 2006, for a period of 8 years.  He was 17 years old at the time of entry and a high school graduate.  He served in Afghanistan.  He earned an ARCOM.  He completed 5 years, 5 months, and 11 days of credible active and reserve service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record shows that on 8 September 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 9-2(e), AR 135-178, by reason of unsatisfactory performance specifically for failing to meet Army Physical Fitness Test Standards.

2.  The unit commander recommended a general, under honorable conditions discharge and advised the applicant of his right to submitting mitigation evidence no later than 15 days from receipt of his notification letter.  There is no record of the commander further advising the applicant of his right to consult with legal counsel.  

3.  On 3 October 2011, the applicant submitted a statement on his behalf; however, there is no record of having consulted with legal counsel.  A receipt of certified mail shows 23 September 2011, as the date of receipt by the applicant.  The forwarding memorandum, dated 13 August 2011, indicates the unit commander recommended separation from the Army and waiver of further rehabilitative efforts.  The forwarding memorandum further indicates statement from the applicant indicating advisement of rights is not applicable.  The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  

4.  The 31 October 2011 orders discharging the applicant confirm the verbal orders of the Adjutant General of Illinois on 28 October 2011, that the applicant is discharged with a characterization of service of general, under honorable conditions.  The applicant was transferred to the U.S. Army Reserve Control Group. 

5.  The record shows that on 31 October 2011, Department of Military Affairs, State of Illinois, Springfield, Illinois, Orders 304-031, discharged the applicant from the Army National Guard and assigned him as a Reserve of the Army for annual training, effective date 28 October 2011, with a general, under honorable conditions discharge.  

6.  The record contains an NGB Form 22 (Report of Separation and Record of Service).  It indicates the applicant was discharged under the provisions of NGR 600-200, by reason of unsuitability, with a characterization of service of general, under honorable conditions, and a reenlistment eligibility (RE) code of 3.

7.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.   

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Discharge Orders.

2.  Two counseling statements, dated 7 August 2011 and 10 June 2011, for failing to achieve passing score on APFT.

3.  Two DA Forms 705, Army Physical Fitness Test Scorecard, dated 7 August 2011 and 10 June 2011, indicate the applicant failed meeting the minimum passing score on the 2-mile run.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided VA correspondence, dated 28 February 2013; NGB Form 22, dated 28 October 2011; DD Form 214, dated 14 December 2006; State Army and Air National Guard letter, dated 23 January 2013; separation notification memorandum, dated 8 September 2011; applicant’s self-authored statements, dated 3 October 2011 and 28 August 2012 x 2; VA claim application, dated 26 February 2013; counseling statement, dated 11 August 2007; applicant’s signature samples; 7-page medical record, dated 15 October 2011; and ARBA-CMD letter, dated 2 January 2013. 

POST-SERVICE ACTIVITY: 

The applicant provided none

REGULATORY AUTHORITY:

1.  National Guard Regulation (NGR) 600-200 and Army Regulation 135-178 govern procedures covering enlisted personnel of the Army National Guard.  

2.  Army Regulation 135-178 provides for the separation of members of the Army National Guard and Army Reserve when it is determined that a service member is unqualified for further military service by reason of unsatisfactory performance.  

3.  The service of a member separated under this provision of Army Regulation 135-178 will be characterized as honorable or under honorable conditions as warranted by his or her military record.

4.  Chapter 6 of NGR 600-200, paragraph 6-35f refers to AR 135-178, chapter 9 for unsatisfactory performance discharges.  The same paragraph, in pertinent part, states that counseling and initiation of discharge proceedings are required for Soldiers, who have two consecutive failures of the APFT without medical limitations.  

DISCUSSION AND RECOMMENDATION:

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

2.  After examining the applicant’s record of service, his military records, the documents and the issues submitted with the application, the discharge appears to be improper.  

3.  The evidence of record confirms that the applicant was not advised of his right to seek legal counsel.  AR 135-178 stipulates that the notification procedure of Chapter 3, Section II will be used and that Soldiers being considered for separation will be informed of their right to consult with legal counsel at the onset of the involuntary separation proceedings.  In the notification memorandum, dated 8 September 2011, the unit commander failed to notify the applicant of his right to consult with legal counsel; therefore, he was denied the opportunity to consult with a legal counsel.

4.  Accordingly, the record shows the proper discharge and separation authority 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 14, AR 135-178.  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:  Records Review      Date:  04 October 2013      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None 

Witnesses/Observers:  NA 

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:		NA
Change Characterization to:	NA
Change Reason to:			NA
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		NA

Other:  Thru:  Chief, National Guard Bureau                                            Date:  8 October 2013
To:  Adjutant General, State of Illinois

            The Army Discharge Review Board, under the provisions of Title 10, United States Code, Section 1553, in the case of the applicant named in Page 1, recommends the applicant be considered for a change of his discharge by the Adjutant General, State of Illinois, with issuance of a new NGB Form 22a, as follows:
                  
           ( X )   Change characterization of discharge to Honorable
           ( X )   Change Authority and Reason to Chapter 14, AR 135-178, Secretarial Authority.









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)		AR20130006180

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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