Applicant Name: ????? Application Receipt Date: 2010/09/23 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he wants an upgrade because he served his country and went to war. He is trying to go to school and get his VA benefits, but he needs his discharge changed. His discharge was to be upgraded after 6 months. He served in OIF, but he can't get chapter 33 benefits because his discharge isn't honorable, and would like it changed to honorable so that he can go to school to better his education. 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: NIF Discharge Received: Date: 050318 Chapter: 14-12b AR: 635-200 Reason: Misconduct-Pattern of Misconduct RE: SPD: JKA Unit/Location: Rear Detachment Company, 2nd Battalion, 7th Infantry, 1st Brigade, 3rd Infantry Division, Fort Stewart, GA Time Lost: None Article 15s (Charges/Dates/Punishment): 041216, wrongfully used marijuana between on or about (040903-041004), reduction to Private (E-1), forfeiture of $596.00 pay per month for two months, suspended, to be automatically remitted if not vacated before (050616), extra duty and restriction for 45 days. (FG) Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 23 Current ENL Date: 030129 Current ENL Term: 3 Years ????? Current ENL Service: 2 Yrs, 1 Mos, 20 Days ????? Total Service: 7 Yrs, 1 Mos, 28 Days ????? Previous Discharges: USAR 971107-980120/NA RA 980121-010120/HD USARCG 010121-030128/NA Highest Grade: E-4 Performance Ratings Available: Yes No MOS: 19K10 M1 Armor Crewmember GT: 87 EDU: HS Grad Overseas: Southwest Asia Combat: Iraq/Kuwait (030125-030729) Decorations/Awards: NDSM, GWOTEM, GWOTSM, ASR, PUCA 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 the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14-12b, AR 635-200, by reason of a pattern of misconduct; in that he received a Field Grade Article 15 on (041216 for failing a urinalysis on (041004), for wrongful use of marijuana, and then failed another urinalysis on (041102), with a general, under honorable conditions discharge. He was advised of his rights. The applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit 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 4 March 2005, 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 record contains a CID Report of Investigation in reference to the applicant's offense of wrongful use and possession of marijuana dated 4 November 2004. 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, the analyst determined that the discharge is improper. The evidence of record shows that the applicant consulted with legal counsel and was advised that if he had over six years or more of total active and reserve military service at the time of initiation of separation action, he was entitled to have his case heard by an administrative separation board. The record shows that the applicant had over six years of military service and was entitled to an administrative separation board when he consulted with legal counsel; however, no where on the election of rights form was there a provision for the applicant to request or waive his rights to an administrative separation board, even though he was advised of that right. The evidence of record further shows that he did not waive that right. 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. 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 fully honorable and a change to the narrative reason for separation to Secretarial Authority. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 8 June 2011 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 293 dated 16 September 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 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 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 fully honorable and a change to the narrative reason for separation to Secretarial Authority. IX. Board Decision XI. Certification Signature Board Vote: Approval Authority: Character - Change 5 No change 0 Reason - Change 5 No change 0 (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: Secretarial Authority under the Provisions of Chapter 5-3, AR 635-200, with a corresponding SPD Code of "JFF." 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 AR20100024472 ______________________________________________________________________________ Page 1 of 3 pages