IN THE CASE OF:	Mr. 

      BOARD DATE:	24 January 2014

      CASE NUMBER:	AR20130010035
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation based on impropriety that follows, the Board determined that the discharge is now inequitable.  The evidence of record supports the applicant was discharged on the expiration term of service date (ETS).  Army Regulation 635-200, states that only an honorable characterization of service may be awarded a Soldier upon completion of their period of enlistment.  Accordingly, the Board voted to grant full relief by changing the characterization of service to honorable.  Further, the Board determined the reason for discharge was also inequitable.  The Board found the applicant served his entire enlistment and the chain of command had the option to allow him to be separated by reason of ETS.  In view of the foregoing, the Board voted to change the narrative reason for separation to Completion of Required Active Service and the separation authority as AR 635-200, chapter 4.

Further, someone in the discharge process erroneously entered on the applicant’s separation document, DD Form 214, block 27, a reentry eligibility code of ‘1’.  The Board voted to change the reentry eligibility code to ‘3’. 

      
      
      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 the characterization of his service from general, under honorable conditions to fully honorable.  

2.  The applicant states, in effect, he served on active duty for approximately three years, and served a deployment within that period.  He was purpose driven and served with absolute pride.  It is true that after deployment, he began to struggle much like many veterans of war.  However, he never let his struggles hinder or diminish his duty performance at any time, as noted based on his accomplishments and regard by senior leadership personnel.  He had developed sleep problems and other personal stress systems.  He didn’t complain, and served day in and day out as a correctional specialist.  He did not try to make excuses, nor did he ask anyone to have pity for him.  His command took disciplinary actions against him four to five months prior to his ETS date.  Typically, he would have removed himself from being a prison guard, but the command maintained confidence in his abilities and he soldiered with pride.  Then, not at the last month or day, but literally at the last minutes before he departed on his ETS date, his commander expedited an administrative separation and had it processed at the AG’s office on the actual time he was to sign out, in lieu of his ETS, and he was issued a general, under honorable conditions discharge.  Then he had to return to the unit to be honored at a farewell party and receive a plaque.  The unit actually worked him until the very last day before he started clearing and before having been read his separation notice.  He was notified on 19 February 2013, of the intent to discharge him involuntarily.  The area received back to back snow storms and the entire installation was closed down.  He was unable to get to TDS until 28 February 2013, and was to submit matters on 1 March (a Friday) before his ETS on Saturday.  If he knew of being involuntarily separated and the process was done with some integrity, he would not have been stunned.  He knows he deserved an honorable discharge.  It is unfair for the unit to work a Soldier after having already punished him, and impose an involuntary separation coincidentally on his ETS date.  It appeared the unit wanted to prevent him from being able to use his Post 9/11 GI benefits.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	28 May 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	2 March 2013
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200 
			Paragraph 14-12c, JKQ, RE-1
	e.	Unit of assignment:	HHD, 15th MP Bde, Fort Leavenworth, KS
	f.	Current Enlistment Date/Term:	3 March 2010, 3 years
	g.	Current Enlistment Service:	3 years
	h.	Total Service:	3 years
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	31E10, Internment/Resettlement Specialist
	m.	GT Score:	106
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (110109-111204)
	q.	Decorations/Awards:	ARCOM; NDSM; ICM-CS; GWOTSM; ASR; OSR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 3 March 2010, for a period of 3 years.  He was 20 years old at the time of entry and a high school graduate.  He served in Iraq.  He earned an ARCOM.  He completed three years of active duty service, and was involuntarily separated on the date of his ETS for misconduct, specifically for abusing illegal drugs.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 19 February 2013, 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 misconduct (drug abuse), specifically for wrongfully using marijuana (121205-130104).

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 28 February 2013, the unit commander indicated in a memorandum for record, that the applicant failed to respond to his notification of separation within seven duty days, and because he failed to respond, he waived his rights to consult with counsel; subject written statements on his own behalf; and to obtain copies of documents sent to the separation authority supporting the proposed separation.  The memorandum further detailed the events and circumstances surrounding the applicant’s multiple appointments with counsel that were canceled, and the unit’s attempt to obtain a special appointment with a legal counsel that was declined by the office of the Trial Defense Service.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  

4.  On 28 February 2013, 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 from the Army on 2 March 2013, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious misconduct), a Separation Program Designator code (SPD) of JKQ and an RE code of 1. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There are no counseling statements or UCMJ actions in the record.  However, the applicant was discharged as a PV2/E-2; the action that reduced him in rank is not available in his record.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a copy of his DD 214 for service under current review; the applicant’s statement to the separation authority, dated 1 March 2012; two separate Trial Defense Service (TDS) memoranda, dated 28 February 2013, rendered by the senior defense counsel to the applicant’s unit commander with requests; memorandum for record, 1 March 2013, subject: Certificate of Service – Matters Submitted by the applicant; two e-mail correspondence between counsel, dated 28 February 2013; a statement, dated 1 March 2013, rendered by the TDS paralegal explaining the events and circumstances surrounding the scheduling of TDS appointments for the applicant, the closure of the TDS office due to inclement weather, the unit’s commander retrieval of the applicant’s incomplete separation packet void of the Soldier’s rights advisement and signature of the defense counsel through no fault of the Soldier.

POST-SERVICE ACTIVITY: 

The applicant provided none.  

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 4 of that regulation provides, in pertinent part, for the separation of individuals upon completion of required service (i.e., expiration term of service).  

2.  Soldiers being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service, unless the Soldier is in entry-level status.  

3.  The service of Soldiers in entry-level status will be uncharacterized.  A Soldier is in an entry-level status if the Soldier has not completed more than 180 days of creditable continuous active duty at the time of the discharge or release from active duty.  

4.  In the case of an ARNGUS or USAR Soldier on active duty (AD) or active duty training (ADT) who is to be discharged, the character of the period of service from which he/she is being discharged will be based solely on military behavior and performance of duty during the current period of service while actually performing AD or ADT.

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 issues and documents submitted with the application, the discharge appears to be improper.  

3.  The evidence of record confirms that the applicant was denied his right to consult with legal counsel due to the unavailability of the counsel following his notification of the involuntary separation proceedings and the impending ETS date.  Consultation with a legal counsel is a right that is required under the provisions of Army Regulation 635-200, within a reasonable time, unless waived in writing or failing to respond within the reasonable period of time. The record reflects that the applicant was unable to obtain legal counsel within a reasonable period of time prior to his approaching ETS date through no fault of the Soldier.  The denial of such right to legal counsel constituted a prejudicial error to the rights of the applicant and as a result the discharge is improper.  

4.  Additionally, the evidence of record further supports the impropriety of the applicant’s characterization of service, because the applicant was discharged on the expiration term of service date (ETS).  Army Regulation 635-200, states that only an honorable characterization of service may be awarded a Soldier upon completion of their period of enlistment.  

4.  In view of the foregoing, 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 “Completion of Required Active Service,” under the provisions of Chapter 4, AR 635-200, with a corresponding separation (SPD) code of "KBK."  



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review     Date:  24 January 2014     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:			Completion of Required Active Service
Change Authority for Separation:	AR 635-200, Chapter 4
Change RE Code to:		3
Grade Restoration to:		NA
Other:					Separation Program Designator (SPD) code KBK



















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)		AR20130010035



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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