Applicant Name: ????? Application Receipt Date: 2009/04/24 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: See DD Form 293 submitted by the applicant. 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: 080506 Discharge Received: Date: 081114 Chapter: 14-12c AR: 635-200 Reason: Misconduct (Serious Offense) RE: SPD: JKQ Unit/Location: HHC, 1st Cav Bde, Fort Hood, TX Time Lost: None Article 15s (Charges/Dates/Punishment): None in file Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 25 Current ENL Date: 071204 Current ENL Term: 4 Years ????? Current ENL Service: 00 Yrs, 11Mos, 10Days ????? Total Service: 07 Yrs, 08Mos, 25Days ????? Previous Discharges: RA 010220-050616/HD RA 050617-071203/HD Highest Grade: E-6 Performance Ratings Available: Yes No MOS: 13F1P/Fire Spt Spc GT: 107 EDU: HS GRAD Overseas: SWA, Korea Combat: Iraq (041006-051005 and 060927-080124) Decorations/Awards: ARCOM-3, AAM-2, AFAM, VUA, AGCM-2, NDSM, GWOTSM, GWOTEM, KDSM, ICM/1BSS, ASR, OSR, CAB, NCOPDR V. Post-Discharge Activity City, State: Killeen, TX Post Service Accomplishments: None listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 6 May 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason misconduct—commission of a serious offense, for being charged with driving while intoxicated on 27 August 2006 and on 21 March 2008, with an under other than honorable conditions discharge. He was advised of his rights. On 13 May 2008, the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board. The applicant 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 an under other than honorable conditions discharge. On 8 September 2008, the applicant was notified to appear before an administrative separation board and advised of his rights. On 17 October 2008, the administrative separation board convened. The applicant appeared with counsel. The board recommended that the applicant be discharged with issuance of a character of service of under other than honorable conditions. On 31 October 2008, the separation authority approved the recommendation of the administrative separation board and directed that the applicant be discharged with a characterization of service of under other than honorable conditions. The applicant was to be reduced to the lowest enlisted rank. 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 available military records, and the issue and documents submitted with the application, the analyst found several mitigating factors that would merit a partial upgrade of the applicant's characterization of service to general, under honorable conditions. The analyst does not condone the applicant’s misconduct; however, the evidence in this case supports a conclusion that the characterization of service was too harsh, and as a result it is inequitable. The analyst found that the length and quality of the applicant's service to include his two combat tours in Iraq, his numerous awards, and the circumstances surrounding the misconduct mitigated the discrediting entries in his service record. The analyst noted that one of the DWI offenses occurred on 27 August 2006 and the applicant deployed to Iraq with his unit on 24 September 2006. The applicant was not enrolled in the ASAP program until after he had returned from deployment. The applicant reenlisted while in Iraq on 4 December 2007. AR 635-200, paragraph 3-8, stipulates that characterization will be determined solely by the Soldier’s military record which includes the Soldier’s behavior and performance of duty during the current enlistment or period of service to which the separation pertains. It further stipulates that to the extent that such matters are considered on the issue of retention or separation, the record of proceedings will reflect express direction that such information will not be considered on the issue of characterization. The record does not contain such a record and the analyst concluded that the rights of the applicant were not prejudiced by this harmless error in that the commanders and administrative separation board considered both offenses to determine the issue of retention or separation. Accordingly, the analyst recommends that partial relief be granted in the form of an upgrade of the characterization of service to general, under honorable conditions. However, the analyst determined that the reason for discharge was fully supported by the record and therefore, remains both proper and equitable. This action entails restoration of grade to E-6/SSG. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 29 January 2009 Location: Washington, D.C. Did the Applicant Testify? Yes No Counsel: NA Witnesses/Observers: NA Exhibits Submitted: NA 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 of service was too harsh based on the applicant’s length and quality of his service to include his two combat tours and as a result it is inequitable. Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined that the reason for discharge was proper and equitable and voted not to change it. This action entails restoration of grade to E-6/SSG. IX. Board Decision XI. Certification Signature Board Vote: Approval Authority: Character - Change 3 No change 2 Reason - Change 0 No change 5 (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: NA Other: NA RE Code: Grade Restoration: No Yes Grade: E-6/SSG ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20090007089 ______________________________________________________________________________ Page 1 of 3 pages