Applicant Name: ????? Application Receipt Date: 2012/03/05 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states: "I am requesting a change for an upgrade based on my military service. The supporting documents will prove while in the service and away from my previous spouse, my time of service was exemplary." 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: 080303 Discharge Received: Date: 080424 Chapter: 14-12b AR: 635-200 Reason: Pattern of Misconduct RE: SPD: JKA Unit/Location: HHC, 10th SBTB, Fort Drum, NY Time Lost: None Article 15s (Charges/Dates/Punishment): 070327, Failure to go at the time prescribed to his appointed place of duty x 3 (070313, 070314, and 070314), reduction to E3 (suspended); extra duty for 14 days (suspended); and restriction for 14 days (CG). Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 29 Current ENL Date: 051215 Current ENL Term: 03 Years 02 Weeks Current ENL Service: 02 Yrs, 07 Mos, 29 Days ????? Total Service: 07 Yrs, 02 Mos, 10 Days ????? Previous Discharges: ARNG-950221-950809/NA IADT-980810-951128/NA ARNG-951129-990901/GD Highest Grade: E4 Performance Ratings Available: Yes No MOS: 92Y10/Unit Supply Specialist GT: 101 EDU: GED Overseas: Southwest Asia Combat: Afghanistan (060216-070206) Decorations/Awards: JSCM, AAM-2, NDSM, ACM, ASR, OSR, NATO MDL V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: None Listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 3 March 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct for assaulting his spouse (070315); receiving a Company Grade Article 15 (070327) for three incidents of failure to report; and violating the no-contact order placed on him by his commander (070914 and 080121), with a general, under honorable conditions discharge. He was advised of his rights. On 3 March 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily requested to appear before an administrative separation board if he was entitled by regulation, 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 action and recommended approval of the separation with a general, under honorable conditions discharge. The separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions. The applicant's record contains Military Police Reports, dated 15 March 2007, 18 September 2007, and 25 January 2008. b. Legal Basis for Separation: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of this regulation 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 absence 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. c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s military records during the period of enlistment under review, the issues and documents he submitted, 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. The record reflects that the applicant did not receive an administrative separation board. The analyst determined that denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge 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 honorable and a change to the narrative reason for separation to Secretarial Authority. This action does not entail a change to the reentry eligibility (RE) code; however, the board can consider it . VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 22 August 2012 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 293, Court Documents, dated 10 June 10 from the Supreme Court of The Stated of New York County of Jefferson (6 pages), Certificate for award of the Non Article 5 NATO Medal, and DD Form 214 for the period of service under review. 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 discharge was and 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 Board 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 and did not waive it. The Board further determined that denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper. Accordingly, the Board voted to grant 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. IX. Board Decision Board Vote: Character - Change 5 No change 0 Reason - Change 5 No change 0 (Board member names available upon request) X. Board Action Directed Issue a new DD Form 214 Change Characterization to: Change Reason to: Secretarial Authority under Provision of Chapter 5, AR 635-200. Other: Change the separation authority to paragraph 5-3. RE Code: Grade Restoration: No Yes Grade: NA XI. Certification Signature Approval Authority: ARCHIE L. DAVIS III Colonel, U.S. Army President, Army Discharge Review Board BONITA E. TROTMAN Lieutenant Colonel, U. S. Army Secretary Recorder 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 AR20120004925 ______________________________________________________________________________ Page 3 of 3 pages