Applicant Name: ????? Application Receipt Date: 2010/04/19 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he served honorably for nearly 8 years with no disciplinary action, and with numerous deployments, including combat. He failed the PT Test and when he asked to speak to his battalion commander regarding his general discharge he was denied the opportunity. II. Were Proper Discharge and Separation Authority procedures followed? Tender Offer: NA See Attachments: Legal Medical Minority Opinion Exhibits III. Discharge Under Review Unit CDR Recommended Discharge: Date: 960806 Discharge Received: Date: 960911 Chapter: 13 AR: 635-200 Reason: Unsatisfactory Performance RE: SPD: JHJ Unit/Location: B Company, 705th Military Police Battalion, Fort Leavenworth, KS Time Lost: None Article 15s (Charges/Dates/Punishment): None Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 23 Current ENL Date: Reenl/931027 Current ENL Term: 4 Years ????? Current ENL Service: 2 Yrs, 10 Mos, 24 Days ????? Total Service: 7 Yrs, 0 Mos, 21 Days ????? Previous Discharges: RA 890830-931026/HD Highest Grade: E-5 Performance Ratings Available: Yes No MOS: 95c2P Corrections Spec/31K20 Combat Signaler GT: 120 EDU: HS Grad Overseas: Southwest Asia/Saudi Arabia Combat: Kuwait (900818-910322) Decorations/Awards: GCMDL (2), NDSM, SWASMDLw/2 BSS, HSM, NCOPDR, KLMDL (K), KLMDL (SA), ASR V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: None submitted by the applicant. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 6 August 1996, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 13, AR 635-200, by reason of unsatisfactory performance for failing the Army Physical Titness Test (APFT) on (960502) and (960726) with a general, under honorable conditions discharge. He was advised of his rights. On 8 August 1996, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than an honorable discharge and did not submit a statement in his own behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed discharge action and recommended approval with a general, under honorable conditions discharge. On 11 September 1996, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a general, under honorable conditions discharge. The applicant was not transferred to the Individual Ready Reserve (IRR). b. Legal Basis for Separation: Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13-2e of this regulation, states in pertinent part, that separation proceedings will be initiated for Soldiers without medical limitations who have two consecutive failures of the Army Physical Fitness Test. The reason for discharge will be shown as unsatisfactory performance. Service of Soldiers separated because of unsatisfactory performance for failure of the Army Physical Fitness Test will be characterized as honorable or general, under honorable conditions. c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s military records, the analyst determined that the discharge is improper. The evidence of record shows 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 and reserve military service at the time of initiation of separation action. The analyst noted that an administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects that the applicant did not receive an administrative separation board. Further, the analyst determined that in accordance with AR 635-200, Section III, paragraph 1-19c, the least favorable characterization of service that the SPCMA could have approved was a general, under honorable conditions discharge which he received at the time of his separation from the service. The final decision for his separation and characterization of service was to be made by the General Court Martial Convening Authority (GCMCA). The analyst determined that denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the characterization of service is improper. In view of the foregoing, the analyst recommends to the Board that relief be granted in the form of an upgrade of the characterization of service to fully honorable. However, the analyst determined that the reason for discharge was fully supported by the record and therefore, remains both proper and equitable. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 12 January 2011 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 293 dated 9 April 2010. VIII. Board Discussion, Determination, and Recommendation After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the characterization was improper. The evidence of record shows that the applicant had over 6 years of total active and reserve military service at the time of initiation of separation action and was entitled to an administrative separation board. He waived the board contingent upon receiving a characterization of no less than honorable. The record reflects that the applicant did not receive an honorable characterization of service based on the conditional waiver he submitted nor an adminstrative separation board. The Army Discharge Review Board determined that denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the characterization is improper. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to fully honorable. The Board determined that the reason for discharge was proper and equitable and voted not to change it. IX. Board Decision XI. Certification Signature Board Vote: Approval Authority: Character - Change 5 No change 0 Reason - Change 1 No change 4 (Board member names available upon request) EDGAR J. YANGER Colonel, U.S. Army X. Board Action Directed President, Army Discharge Review Board Issue a new DD Form 214 Change Characterization to: Change Reason to: No Change Other: No Change RE Code: Grade Restoration: No Yes Grade: No Change Legend: AWOL Absent Without Leave GCM General Court Martial NA Not applicable SCM Summary Court Martial BCD Bad Conduct Discharge GD General Discharge NIF Not in the file SPCM Special Court Martial CG Company Grade Article 15 HD Honorable Discharge OAD Ordered to Active Duty UNC Uncharacterized Discharge DD Dishonorable Discharge HS High School Graduate OMPF Official Military Personnel File UOTH Under Other Than Honorable FG Field Grade Article 15 IADT Initial Active Duty Training RE Reentry Code Conditions ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20100013534 ______________________________________________________________________________ Page 1 of 3 pages