AR20140002388

IN THE CASE OF: Mr.

BOARD DATE: 24 April 2015

CASE NUMBER: AR20140002388
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation which follows, the Board determined the discharge to be proper and equitable and voted to deny relief.

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 APPLICANTS REQUEST AND STATEMENT:

1. The applicant requests to upgrade the characterization of his service from general, under honorable conditions to fully honorable

2. The applicant states, in pertinent part and in effect, his discharge is inequitable because it was based on an isolated incident in almost three years of service with no other adverse action. He completed an Article 15 punishment consisting of 45 days of extra duty and restriction for being AWOL. He was not treated fairly. He was young and immature at the time of his discharge. His discharge process ended on 10 December 2004; however, his ETS was on 2October 2004. He had 50 days of leave and the AWOL period of 26 days was subtracted, leaving him with 30.5 days of end-leave balance, according to his DD Form 214. The discharge has caused him many career opportunities. He would like to continue his education and not depend on public help.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 3 February 2014
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 10 December 2004
d. Reason/Authority/SPD/RE Code: Misconduct-Commission of a Serious Offense, AR
635-200, Paragraph 14-12c, JKQ, RE-3
e. Unit of assignment: Svc Btry, 1st Bn, 41st FA, 1st Bde, 3rd Infantry
Division, Fort Stewart, GA
f. Current Enlistment Date/Term: 8 November 2001, 3 years
g. Current Enlistment Service: 3 years, 0 months, 7 days
h. Total Service: 3 years, 0 months, 7 days
i. Time Lost: 26 days
j. Previous Discharges: None
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 13B10, Cannon Crewmember
m. GT Score: 97
n. Education: HS Graduate
o. Overseas Service: SWA
p. Combat Service: Iraq (030321-030722)
q. Decorations/Awards: NDSM; GWOTEM; GWOTSM; ASR; PUCA
r. Administrative Separation Board: No
s. Performance Ratings: None
t. Counseling Statements: Yes
u. Prior Board Review: No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 8 November 2001, for a period of 3 years (ETS: 041002 per ERB, dated 7 September 2004). He was 18 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 13B10, Cannon Crewmember. He served in Iraq. His record documents no other acts of valor or significant achievement. He completed 3 years and 7 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates that on 25 October 2004, 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 of misconduct (serious offense), specifically for being AWOL (040420-040517), missing movement to NTC (040518), and disobeying a lawful order given by a commissioned officer (040710).

2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.

3. On 26 October 2004, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit a statement on his own behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.

4. On 19 November 2004, the separation authority waived further rehabilitation and directed the applicants discharge with a characterization of service of general, under honorable conditions.

5. The applicant was discharged from the Army on 10 December 2004, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct-commission of a serious offense, a Separation Program Designator code (SPD) of JKQ, and an RE code of 3.

6. The applicant’s record shows he was absent without leave (AWOL) during the period 21 April 2004 through 16 May 2004. The method of how he returned to military control is not available.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Article 15, dated 30 August 2004, for disobeying an order (040710), operating a motor vehicle with a suspended license, without a current revalidation decal on license plate, and without proof of insurance (040710). The punishment consisted of a reduction to the grade of E-1, forfeiture of $298, and 14 days of extra duty and restriction, (CG).

2. Article 15, dated 16 June 2004, for being AWOL (040420-040517) (Note that a continuation sheet indicated on the Article 15 is not available). The punishment consisted of a reduction to the grade of E-2, forfeiture of $668 per month for two months (suspended), 30 days of extra duty, and 14 days of restriction, (FG).

3. Three negative counseling statements, dated between 19 April 2004 and 1 June 2004, for failing to report for duty and being AWOL; disobeying his commander; and missing movement.

4. DA Form 4187, Personnel Action, dated 25 May 2004, indicates the applicants duty status changed from AWOL to PDY, effective 17 May 2004. In Section IV Remarks, it provides, in pertinent part, a new ETS date of 28 October 2004.

5. DA Form 4187, Personnel Action, dated 6 May 2004, indicates the applicants duty status changed from PDY to AWOL, effective 21 April 2004.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none.

POST-SERVICE ACTIVITY:

The applicant provided none.

REGULATORY AUTHORITY:

1. 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 being absent 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.

2. Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the members service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

3. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldiers separation specifically allows such characterization.

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of the characterization of his discharge was carefully considered.

2. After a careful review of all the applicants military records and the issues submitted with the application, the discharge appears to be improper.

3. The evidence in the record confirms that the applicant was retained on active duty beyond his expiration term of service (ETS) date. Under the provisions of AR 635-200, retention beyond a Soldiers ETS to process an administrative separation pursuant to this regulation is not authorized unless the Soldier is pending court-martial charges. The service record indicates the applicant was not pending court-martial charges and therefore was not eligible to be retained for the purpose of administrative discharge.

4. The records show the proper discharge and separation procedures were not followed in this case.

5. Therefore, the discharge being improper, recommend the Board grant full relief in the form of an upgrade to the characterization of service to Honorable, and a change to the narrative reason for separation to Secretarial Authority, under the provisions of Chapter 5, Paragraph 5-3, AR 635-200, with a corresponding separation (SPD) code of “JFF.” 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: 24 April 2015 Location: Washington, DC

Did the Applicant Testify, NA

Counsel: None

Witnesses/Observers: NA

Board Vote:
Character Change: 0 No Change: 5
Reason Change: 0 No Change: 5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214: No
Change Characterization to: No Change
Change Reason to: No Change
Change Authority for Separation: NA
Change RE Code to: NA
Grade Restoration to: NA
Other: NA

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) AR20140002388

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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