IN THE CASE OF:  	Mr. 

      BOARD DATE:  	14 March 2014

      CASE NUMBER:  	AR20130019479
___________________________________________________________________________

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 (i.e., copy of the separation packet) submitted on behalf of the applicant through his counsel shows it appears the Soldier received ineffective assistance of counsel in that the assigned trial defense counsel did not timely communicate with the Soldier or the Soldier's command.  Accordingly, the Soldier's request for an administrative board was not communicated to the command, and his right to a board was violated.  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.  Such a violation constitutes a violation of the Soldier's due process rights rendering the separation 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.  

4.  This action entails restoration of grade to E-6/SSG.




      
      
      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 counselor on behalf of the applicant in his brief requests that the applicant’s under other than honorable conditions discharge be upgraded to honorable. 

2.  The counselor on behalf of the applicant states, in effect, that his client was separated from the US Army after 17 years of service under circumstances where his right to counsel was violated and he was not afforded the opportunity to appear before an administrative separation board.   
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			28 October 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				21 December 2011
d. Reason/Authority/SPD/RE Code:		Misconduct-Conviction by Civil Court,
AR 135-178, Chapter 12, Paragraph 12-2(1) (a), SPD/RE Code-NIF
e. Unit of assignment:				HQ, 718th Transportation Corps Battalion,
HHD Motor Transportation, Columbus, OH
f. Current Enlistment Date/Term:		7 October 2004, 3 years
g. Current Enlistment Service:		7 years, 2 months, 15 days
h. Total Service:				22 years, 7 months, 18 days
i. Time Lost:					None
j. Previous Discharges:			USAR 880225-880627/NA
ADT    880628-881105/UNC
USARCG (AT) 881106-960227/HD
    (Break in Service)
ARNG 970507-020624/NA
AD     020625-030227/HD
ARNG 030228-040627/NA
AD      040628-040718/NA
ARNG 040719-041006/HD
k. Highest Grade Achieved:			SSG
l. Military Occupational Specialty:		19D2H, Cavalry Scout
m. GT Score:					123
n. Education:					Some College
o. Overseas Service:				Germany 
p. Combat Service:				None
q. Decorations/Awards:			ARCOM-3, AAM-2, NDSM-2, GWOTSM,
AFRM w/M Device, NPDR, OSR
r. Administrative Separation Board: 		NIF
s. Performance Ratings:			Yes
t. Counseling Statements:			None
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Army Reserve on 25 February 1988, for a period of 8 years and was honorably discharged on 27 February 1996.  He had a break in service and subsequently joined the Army National Guard on 7 May 1997, and was honorably discharged on 6 October 2004.  He was 33 years old when he enlisted in the Army Reserve on 7 October 2004, and had completed some college courses.  He served in Germany; earned an ARCOM, AAM, and an AFRM w/ M Device and completed 22 years, 7 months, 18 days of active and inactive military service.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record is void of the specific facts and circumstances (i.e., the original separation packet) concerning the events that led to his discharge from the Army Reserve.  

2.  However, the applicant’s counselor submitted the following documents that show on on 29 August 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 12, Paragraph 12-2 (1) (a), AR 135-178, by reason of misconduct-conviction by civil court for being found guilty of eight counts of aggravated assault and nine counts of recklessly endangering another person for crime(s) comitted on 13 November 2009.  

3.  The Regional Support Group (RSG) commander recommended a general, under honorable conditions conditions discharge and advised the applicant of his rights and indicated that he was suspending the separation action for 45 days to give the applicant an opportunity to exercise his rights.

4.  The applicant acknowleddged receipt of his notification of separation proceedings that was dated 29 August 2011.  The applicant consulted with legal counsel and requested consideration of his case by an administrative separation board and that a counsel for representation at the hearing be designated.  The applicant did not submit a statement on his own behalf and indicated that he would be submitting a statement at a later date. 

5.  On 6 November 2011, the Deputy Staff Judge Advocate reviewed the proposed discharge action and indicated that the company commander recommended an under other than honorable conditions discharge and the RSG commander recommended approval of the separation action with a general, under honorable conditions discharge.  The Deputy Staff Judge Advocate recommended to the separation authority to discharge the applicant with an under other than honorable conditions discharge.   

6.  On 18 November 2011, the separation authority approved the recommendation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank.

7.  The evidence of record shows that on 21 November 2011, Department of the Army, Headquarters, 88th Regional Support Command, Fort McCoy, WI, issued Orders 11-325-00010, that discharged the applicant from the Army Reserve, effective 21 December 2011, with an under other than honorable conditions discharge and reduced him to to a Private/E-1. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Five NCOER’s covering the period of October 2004 to 8 August 2011.  The applicant was rated as successful and received X/X from the senior rater.

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant’s counsel provided a brief chronology outlining the sequence of events dated 23 October 2013, separation packet dated 29 August 2011, several pages of e-mail conversations that took place on various dates, character reference letter undated. 

POST-SERVICE ACTIVITY: 

The applicant or his counsel did not provide any with the application.   

REGULATORY AUTHORITY:

1.  Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the United States Army Reserve.  Chapter 12 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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  

2.  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.   

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 (i.e., copy of the separation packet) submitted on behalf of the applicant through his counsel shows it appears the Soldier received ineffective assistance of counsel in that the assigned trial defense counsel did not timely communicate with the Soldier or the Soldier's command.  Accordingly, the Soldier's request for an administrative board was not communicated to the command, and his right to a board was violated.  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.  Such a violation constitutes a violation of the Soldier's due process rights rendering the separation improper. 

4.  Therefore, the discharge being improper, recommend the Board 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,” 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.  

5.  This action does entail a restoration of the applicant’s grade to E-6/SSG. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Record Review-(Tender Offer)     Date:  14 March 2014   
Location: Washington, DC

Did the Applicant Testify?  No

Counsel:  yes [redacted]

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:		No
Issue a new Discharge Order:  	Yes
Change Characterization to:  	Honorable
Change Reason to:  		Secretarial Authority
Change Authority to:  		NA
Change RE Code to:  		NA
Grade Restoration to:  		E-6/SSG
Other: TO: ARBA Promulgation Team. Arlington, VA                             Date: 14 March 2014

     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, directs the ARBA Promulgation Team, Arlington, VA to issue a new discharge order to the applicant which reflects the following directed changes:

           ( X  )	Change characterization of discharge Honorable.
           ( X  )	Restoration of grade to E-6/SSG

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)		AR20130019479



Page 5 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1