Applicant Name: ????? Application Receipt Date: 2011/01/10 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he served his full enlistment of four years and received a general discharge. His pay stopped in June of that year and he would like a refund for the pay lost. 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: 990518 Discharge Received: Date: 990817 Chapter: 14-12c AR: 635-200 Reason: Misconduct RE: SPD: JKQ Unit/Location: HQ & HQ Company, 3rd Battalion, 8th Cavalry Regiment, 1st Cavalry Division, Fort Hood, TX Time Lost: Military Confinement from (990818-990827) for 10 days; as part of his punishment imposed from a Summary Court-Martial. Article 15s (Charges/Dates/Punishment): 981123, stole two concert tickets of a value of about $140.00, the property of a PFC (980810), forfeiture of $463.00 pay per month for two months, suspended, to be automatically remitted if not vacated before (990522), extra duty and restriction for 45 days (FG) Courts-Martial (Charges/Dates/Punishment): 980818, Summary Court-Martial for wrongfully committing eight counts of larceny of a total value of about $10,133.50, on (980107 x 5), and on (980114 x 2), and (980116), the property of a SPEC/E-4. He was sentenced to confinement for 10 days, reduction to Private (E-1), and forfeiture of $617.00 pay. Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 18 Current ENL Date: 950817 Current ENL Term: 4 Years ????? Current ENL Service: 3 Yrs, 11 Mos, 21 Days The applicant has a period of lost time that was not annotated on the DD Form 214 block 29; however, the DA Form 2-1 block 21, DD Form 2329 (Summary Court-Martial) and the unit commander's recommendation for separation indicates that the applicant was sentenced to a period of military confinement, which adjusted his ETS date. Further, the net active service this period on the DD Form 214, block 12c is incorrect; should be as annotated below. Total Service: 3 Yrs, 11 Mos, 21 Days ????? Previous Discharges: None Highest Grade: E-4 Performance Ratings Available: Yes No MOS: 31U10 Signal Support Systems Spec GT: 97 EDU: HS Grad Overseas: None Combat: None Decorations/Awards: GCMDL, NDSM, 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 28 April 1999, 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 committed larceny eight times and failed to pay said debts, with a general, under honorable conditions discharge. He was advised of his rights. On 11 May 1999, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement in his own behalf; however, the statement is not part of the available record. 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 1 June 1999, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions. 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, 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 he served his full enlistment of four years and received a general discharge. The evidence of record shows that the applicant was convicted by a summary court-martial and part of the punishment imposed consisted of ten days confinement, which was considered as lost time. Army Regulation 635-200 paragraph 1-21, a, (3), (4), and b; states that lost time refers to periods of more than one day when a Soldier on active duty cannot perform his duty because of confinement under sentence or confinement while awaiting trial or disposition of a Soldiers case, if the trial results in conviction. Further, the time lost during an enlistment period will be made good at the end of the enlistment period. Therefore the applicant did not fulfill his enlistment agreement of 4 years in which he signed up for and was not discharged on his ETS date, which was adjusted to reflect the lost time. See the Case Report and Directive, Section III, Time Lost and Section IV, Current Enlistment Service, to include the Total Service, which will further clarify the error that was made on the DD Form 214, block 12c, net active service this period and block 29 dates of time lost this period. The applicant further contends that his pay stopped in June of that year and he would like a refund for the pay lost. The analyst noted the applicant's issue; however, the refund the applicant requests does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. 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: 17 August 2011 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 293 dated 5 December 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 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 AR20110000704 ______________________________________________________________________________ Page 1 of 3 pages