IN THE CASE OF: Mr. BOARD DATE: 4 February 2015 CASE NUMBER: AR20140001337 ___________________________________________________________________________ Board Determination and Directed Action 1. After carefully examining the applicant’s record of service during the period of enlistment under review, and considering the Discussion and Recommendation which follows, the Board determined the discharge was improper. 2. The evidence indicates the applicant was entitled to an administrative separation board under the procedures of the National Guard Regulation (NGR) 600-200 and Army Regulation (AR) 135-178. An administrative separation board is a right and required under the provisions of NGR 600-200, paragraph 6-35i(2), which required administrative separation board procedures IAW paragraph 32 be used and AR 135-178, and the record reflects the applicant did not receive an administrative separation board and had not waived it either. Denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper. 3. Accordingly, the Board voted to grant full 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. As this applies to the National Guard, the Board, under the provisions of 10 U.S.C. § 1553, recommends the applicant be considered for a change of his discharge by the Adjutant General, State of Florida, with issuance of a new NGB Form 22a, as follows: a. Change the Character of Service to Honorable. b. Change the Authority and Reason to AR 135-178, Chapter 14, Secretarial Authority. Presiding Officer I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case. THE APPLICANT’S REQUEST AND STATEMENT: 1. The applicant requests to upgrade the characterization of his service from general, under honorable conditions to fully honorable, and to change the narrative reason for his discharge. 2. The applicant states, in effect, he was arrested illegally and transferred to civilian custody. Due to lack of counsel and funds, he pled with the DA to gain a release. He was not told that it would affect his military career. His unit discharged him without informing him but received through the mail that the reason for his discharge was for civilian conviction. He took his case back to court and the judge discharged him from the offense. He requested the ARNG to change his record but was denied although he provided them a background check and court document that revealed no conviction. His record still maintains that he is convicted although he does not have any conviction on his record. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 13 January 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 6 June 2011 d. Reason/Authority/SPD/RE Code: Conviction by Criminal Court, NGR 600-200, Paragraph 6-35l(2), NA, RE-3 e. Unit of assignment: HHC (Rear), 1st Bn, 111 AV, Jacksonville, FL f. Current Enlistment Date/Term: 7 May 2007, 8 years g. Current Enlistment Service: 4 years, 1 month, 0 days h. Total Service: 4 years, 1 month, 0 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 92A10, Automated Logistical Specialist m. GT Score: NIF n. Education: 14 years o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM; ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant enlisted in the Army National Guard on 7 May 2007, for a period of 8 years. He was 25 years old at the time of entry and had two years of college. He was trained in and awarded military occupational specialty (MOS) 92A10, Automated Logistical Specialist. His record documents no acts of valor or significant achievement. He completed 4 years and 1 month of active duty and reserve service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence shows the applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army National Guard of the State Florida. 2. The record shows that on 6 June 2011, HQ, Departments of the Army and the Air Force, Florida National Guard, Office of the Adjutant General, Saint Augustine, FL, Orders 157-029 discharged the applicant from the Army National Guard and as a Reserve of the Army, effective date 6 June 2011, with a general, under honorable conditions discharge. 3. The record contains a properly constituted NGB Form 22 (Report of Separation and Record of Service). It indicates the applicant was discharged under the provisions of paragraph 6-35i(2), NGR 600-200, by reason of conviction by criminal court, with a characterization of service of general, under honorable conditions, and a reenlistment eligibility (RE) code of 3. That subparagraph incorporated by reference the reasons for discharge set forth in AR 135-178, Chapter 12. 4. On 6 December 2013, The Adjutant General, Florida National Guard, reviewed the applicant’s request for a change in his discharge and denied his request. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. There are no negative counseling statements or any documented actions under the UCMJ. 2. Discharge orders. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided an online application with a self-authored statement; the Florida National Guard AG letter, dated 6 December 2013; Department of Corrections Probation Division document, dated 3 May 2013; court order, dated 24 April 2013; FBI letter, dated 30 October 2013 with record of criminal history results; applicant criminal history consent form, dated 22 May 2013; circuit court document (Nolle Prosequi), dated in November 2011; county court action form, dated 16 March 2009; bank letter, dated 17 October 2012; check, dated 16 September 2009; CMD letter, dated 14 June 2013; applicant’s letter to the National Guard, dated 17 June 2013; DD Form 214, dated 15 August 2008; and university letter, dated 14 December 2012. POST-SERVICE ACTIVITY: The applicant provided none. REGULATORY AUTHORITY: 1. National Guard Regulation (NGR) 600-200 and Army Regulation 135-78 govern procedures covering enlisted personnel management of the Army National Guard. Chapter 8 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army Reserve National Guard. Paragraph 8-35i(2) of that regulation provides in pertinent part that individuals can be separated for conviction by criminal court. 2. 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. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicant’s available record of service and his military records, and the documents and issues submitted with the application, the discharge appears to be improper. 2. Although the applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the State of Florida Army National Guard and as a Reserve of the Army, the record does contain a properly constituted NGB Form 22 (Report of Separation and Record of Service), which indicates the applicant was unavailable for signature. This document identifies the reason and characterization of the service. The NGB Form 22 shows the applicant was discharged under the provisions of Chapter 6, paragraph 5-35i(2), NGR 600-200, by reason of conviction by criminal court with a characterization of service of general, under honorable conditions. 3. The applicant's contentions that he does not have any conviction on his record and that the judge dismissed the charge were carefully considered. However, his contentions appear to be without merit based on the available record and submitted evidence, and AR 135-178, paragraph 12-2a, which states, in pertinent part, “Conditions which subject Soldier to discharge. … (a) When initially convicted by civil authorities. …, [or] all other actions tantamount to a finding of guilty, including adjudication withheld, deferred prosecution, entry into adult or juvenile pretrial intervention programs, and any similar disposition of charges. (b) When a punitive discharge would be authorized for the same or a closely related offense under the UCMJ, or the sentence by civil authorities includes confinement for 6 months or more without regard to suspension or probation. (c) When specific circumstances of the offense warrant discharge.” (emphasis added) 4. The applicant’s documentary response from the ARNG, State of Florida, dated 6 December 2013, indicates the applicant’s request for an upgrade and a change to the reentry code was denied based on the discharge being justified by the criteria of paragraph 12-2a, and explained that while the adjudication of guilt was withheld by the civilian court, it was not dispositive for military discharge purposes. The applicant’s submitted evidence: an order that the charge was three counts of theft by deception and a judicial circuit court’s “order of discharge,” in pertinent part, confirmed the applicant was exonerated of any criminal purposes and not considered to have a criminal conviction. However, the circuit court’s order was based on the provisions of the “Probation of First Offenders Act,” which deferred further proceedings and the applicant having fulfilled the terms of his probation, a probation of seven years that was imposed on 31 January 2011, under the provisions of the Act. Upon his motion, he was released early from probation. The dismissal of the charge(s) under the Act resulted in a record of no criminal conviction. However, this action constituted a similar discharge of charges contemplated by AR 135-178, paragraph 2-12a, which supports his separation reason and characterization. Although the court’s order stated the discharge may not be used to disqualify a person in any application for employment or appointment to office in either the public or private sector, the state court’s order does not undermine the National Guard’s prior action that separated the applicant. 5. Accordingly, the rationale the applicant provided as the basis for what he believes was an unfair discharge which warrants an upgrade and a change to the reentry code is not supported by the evidence contained in the available record and evidence. 6. However, according to NGR 600-200, paragraph 6-35i(2), the applicant’s discharge process requires administrative separation board procedures in accordance with paragraph 6-32 be used. Paragraph 6-32 cites to chapter 3, AR 135-178 for those procedures. 7. The submitted evidence confirms that the applicant returned his election of rights with a request for a board as acknowledged by his command. Unfortunately, paragraph 6-32 also states, "All Soldiers with 6 or more years of total military service on the date of initiation of recommendation for separation, or if being considered for separation under other than honorable conditions have the right to an administrative separation board." Although that is a true statement, it is not a complete statement of board entitlement. This apparently misled the command to believe since the Soldier only faced a general discharge and had less than six years service, an administrative separation board was not required. 8. Accordingly, an administrative separation board is a right and required under the provisions of NGR 600-200, paragraph 6-35i(2), which requires that the board procedures IAW paragraph 6-32 be used. The record reflects that the applicant did not receive an administrative separation board and denial of such a board constituted a prejudicial error to the rights of the applicant and as a result the discharge is improper. 9. In view of the above, the records show the proper discharge and separation procedures were not followed in this case. 10. Therefore, the discharge being improper, recommend the Board grant full relief in the form of an upgrade of a change to the characterization of service to “Honorable,” and a change to the narrative reason for separation to “Secretarial Authority,” under the provisions of Chapter 14, AR 135-178. This action does not entail a change to the reentry eligibility (RE) code; however, the Board can consider it. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 4 February 2015 Location: Washington, DC Did the Applicant Testify? No Counsel: None Witnesses/Observers: No Board Vote: Character Change: 5 No Change: 0 Reason Change: 5 No Change: 0 (Board member names available upon request) Board Action Directed: Issue a new NGB Form 22: Yes Change Characterization to: Honorable Change Reason to: Secretarial Authority Change Authority for Separation: AR 135-178, Chapter 14 Change RE Code to: No Change Grade Restoration to: NA Other: Thru: Chief, National Guard Bureau Date: 4 February 2015 To: Adjutant General, State of Florida, Departments of the Army and Air Force, Florida National Guard, Saint Francis Barracks, Post Office Box 1008, Saint Augustine Florida, 32058. The Army Discharge Review Board, under the provisions of Title 10, United States Code, Section 1553, in the case of the applicant named in Page 1, recommends the applicant be considered for a change of his discharge by the Adjutant General, State of Florida, with issuance of a new NGB Form 22a, as follows: ( X ) Change characterization of discharge to Honorable. ( X ) Change narrative reason to Secretarial Authority. ( X ) Change authority to AR 135-178, Chapter 14. ( X ) Other. (See Remarks below) Remarks: This action also entails a change to the applicant’s discharge from the Reserve of the Army to reflect a characterization of service of general, under honorable conditions. ARBA Promulgation Team is directed to ensure the applicant’s discharge from the Reserve of the Army reflects the aforementioned change. Legend: AMHRR - Army Military Human Resource Record FG - Field Grade IADT – Initial Active Duty Training RE - Reentry AWOL - Absent Without Leave GD - General Discharge NA - Not applicable SCM- Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial CG - Company Grade Article 15 HD - Honorable Discharge OAD - Ordered to Active Duty UNC - Uncharacterized Discharge CID - Criminal investigation Department MP – Military Police OMPF - Official Military Personnel File UOTHC - Under Other Than Honorable Conditions ADRB Case Report and Directive (cont) AR20140001337 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1