IN THE CASE OF:  	Mr. 
      
      BOARD DATE:  	4 December 2013

      CASE NUMBER:  	AR20130009169
___________________________________________________________________________

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 he wants better chances for employment and he is possibly considering joining the reserves.  During his time in service, he was an honorable Soldier, and had continuous honorable service.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		13 May 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			5 February 2010
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 14-12c 						JKQ, RE-3        
e. Unit of assignment:			C Co, 2-7 Cav, 4th BCT, 1st Cav Div, Ft. Hood, TX
f. Current Enlistment Date/Term:	10 April 2008, 4 years 
g. Current Enlistment Service:	1 year, 9 months, 26 days
h. Total Service:			6 years, 0 month, 21 days
i. Time Lost:				8 days (AWOL 090121-090129 not reflected on DD						Form 214)
j. Previous Discharges:		RA (040115-060221), HD										RA (060222-080409), HD
k. Highest Grade Achieved:		E-6
l. Military Occupational Specialty:	19K20, M1 Armor Crewman  Unit Supply Specialist
m. GT Score:				102
n. Education:				HS Graduate 
o. Overseas Service:			Germany, SWA
p. Combat Service:			Iraq x 2 (041011-050929 and 070814-081026)
q. Decorations/Awards:		PH,ARCOM-3, AAM,VUA, AGCM, NDSM, ICM-w/CS  					GWOTSM, GWOTEM, NPDR, ASR, OSR-3, CAB, 
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes	
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Army on 15 January 2004 for a period of four years.  He was 19 years old at the time of enlistment.  On 22 February 2006, he reenlisted in the Regular Army for a period of three years and he reenlisted again on 10 April 2008 for four years.  The applicant served in Iraq twice and earned a PH, three ARCOMs, AAM, AGCM, and a CAB.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 13 January 2010, 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, specifically for his conviction on 22 October 2009 for two felonies of assaulting a police officer with a vehicle, and possession of a controlled substance (methamphetamines).  

2.  Based on the above misconduct, the commander recommended a general under honorable conditions discharge. 

3.  On 20 January 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action and requested consideration of his case by an administrative separation board and did 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 26 January 2010, 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 5 February 2010, for misconduct (serious offense), under the provisions of AR 635-200, Chapter 14-12c, with an SPD code of JKQ and an RE code of 3.

6.  The applicant's record shows he was absent without leave (AWOL) during the period of 21 January 2009 through 29 January 2009.  He surrendered and returned to military control.  The DD Form 214 did not reflect this lost time.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 27 February 2009, for being AWOL (090121-090128).  The punishment consisted of reduction to E-5, forfeiture of $1,167.00 pay for two months, extra duty for 45 days, and restriction for 45 days (FG).   

2.  An unsuccessful, annual NCOER with the ending period 31 March 2009, which noted the applicant’s failure to report back on time from leave, and his failure to successfully pass the APFT. 

3.  Several documents pertaining to the applicant’s arrest for the following charges:

      -Assault with a deadly weapon
      -Lynching
      -Receiving Stolen Property
      -Possession of a Controlled Substance

4.  Four negative counseling statements dated between 29 January 2009 and 4 January 2010, for AWOL, revocation of pass privileges, and the initiation of separation from service.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 8 May 2013, and a DD Form 214.

POST-SERVICE ACTIVITY: 

None were 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 appears to be improper.  

3.  The evidence of record confirms that the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board and had over 6 years of total active service at the time of initiation of separation action.  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.  An administrative separation board is a right and required under the provisions of Army Regulation 635-200.  The record reflects that 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:  Records Review     Date:  4 December 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:		Yes
Change Characterization to:	Honorable
Change Reason to:			Secretarial Authority
Change Authority for Separation:	AR 635-200, Chapter 5-3
Change RE Code to:		NA
Grade Restoration to:		NA
Other:					Separation Program Designator (SPD) code JFF

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 


ADRB Case Report and Directive (cont)		AR20130009169



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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