Applicant Name: ????? Application Receipt Date: 2009/11/13 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states "1. believe my discharge should be changed due to many discrepancies stated in my discharge packet. The packet was not put together properly as it was returned numerous times which resulted in my medical evaluation being out dated by the time the packet was finally accepted. The discharge was based primarily on a serious offense (a DUI) and the packet was put together on that serious offense, however since the packet was put together prior to me going to court for the DUI, the packet did not reflect that the DUI was reduced to Reckless Driving. Along with these discrepancies, 2. my Command dug up a Company Grade Article 15 from my AIT unit which was only supposed to be a local record and was not supposed to follow me for the duration of my military career." 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: 090519 Discharge Received: Date: 090615 Chapter: 14-12c AR: 635-200 Reason: Misconduct (Serious Offense) RE: SPD: JKQ Unit/Location: Group Service Support Company, Group Support Battalion, 5th Special Forces Group (Airborne), Fort Campbell, KY Time Lost: None Article 15s (Charges/Dates/Punishment): 081112, without authority, absent himself from his unit on or about (081014-081014); failed to obey a lawful order issued by MAJ on or between (081010-081014); with intent to deceive, made a false official statement to SGT x 2, on or about (081009); (081013); forfeiture of $350.00 pay, suspended, to be automatically remitted if not vacated on or before (090210); extra duty and restriction for 14 days (FG) Article 15, 080604, failed to go to his appointed place of duty on or about (080601); stole a bottle of cologne, of a value of about $25.00, the property of AAFES on or about (080529); reduction to Private (E-1); forfeiture of $314.00 pay; extra duty and restriction for 14 days (CG) Article 15, 080509, as a result of wrongful previous overindulgence in intoxicating liquor, was drunk and disorderly; for the proper performance of his duties, on or about (080427); reduction to Private (E-2); forfeiture of $352.00 pay per month for one month, suspend $202.00 until (080512); extra duty and restriction for 4 days (CG) Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 27 Current ENL Date: 080423 Current ENL Term: 3 Years 12 Weeks/The applicant required a moral waiver at the time of enlistment, which was approved on (080408). Current ENL Service: 1 Yrs, 1 Mos, 23 Days ????? Total Service: 7 Yrs, 1 Mos, 21 Days ????? Previous Discharges: ARNG 020426-020731/NA ADT 030422-030919/NA ARNG 030920-040214/NA OAD 040215-050123/NA ARNG 050124-060112/NA OAD 060113-070102/NA ARNG 070103-080422/HD Highest Grade: E-4 Performance Ratings Available: Yes No MOS: 88M10 Motor Transport Oper GT: 112 EDU: GED Cert Overseas: Southwest Asia Combat: Iraq (dates-NIF) Decorations/Awards: NDSM, GWOTEM, GWOTSM, ICMDLw/3CS, ASR, OSR (2), AFRMDLw/M Dev (2) 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 12 January 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14-12c, AR 635-200, by reason of misconduct-commission of a serious offense; in that he was apprehended by the Clarksville Police Department for driving under the influence and implied consent law on (081102), with a general, under honorable conditions discharge. He was advised of his rights. On 5 March 2009, 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 and submitted a statement in his own behalf. The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge. On 3 June 2009, 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 received a letter of reprimand on 3 December 2008 for refusing to take a lawfully requested test to measure his alcohol content, when there was a reasonable belief that he was driving under the influence of alcohol; and violated the implied consent Law when he refused to submit to an intoxilyzer test in Tennessee. (Administrative) b. Legal Basis for Separation: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 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, but a general discharge 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, and the issue submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge. The analyst determined that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. By the misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance. The analyst noted the applicant's issue that: 1. he believes his discharge should be changed due to the many discrepancies stated in his discharge packet; 2. his Command dug up a Company Grade Article 15 from his AIT unit which was only supposed to be a local record and was not supposed to follow him for the duration of his military career. The analyst found no evidence of arbitrary or capricious actions by the command, the applicant's Article 15's were all administered during the applicant's initial period of service under review. Further, the applicant's chain of command determined the specific offenses warranted separation. Because of the civilian conviction, the applicant diminished the quality of service below that meriting a fully honorable discharge. The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, the analyst determined that the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 1 September 2010 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: The applicant submitted an on line application dated 5 November 2009. 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 both proper and equitable and voted to deny relief. IX. Board Decision XI. Certification Signature Board Vote: Approval Authority: Character - Change 0 No change 5 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: 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 AR20090020275 ______________________________________________________________________________ Page 2 of 3 pages