Applicant Name: ????? Application Receipt Date: 2010/03/24 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states in effect that he was arrested and convicted of a civil offense that had nothing to do with the military. He wants to rejoin the USAR or ARNG. 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: 020919 Discharge Received: Date: 021015 Chapter: Section II AR: 635-200 Reason: Misconduct RE: SPD: JKB Unit/Location: HHC, 3-187 IN Rgt, Fort Campbell, KY Time Lost: None Article 15s (Charges/Dates/Punishment): None Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 20 Current ENL Date: 010223 Current ENL Term: 3 Years ????? Current ENL Service: 01 Yrs, 07Mos, 23Days ????? Total Service: 01 Yrs, 07Mos, 23Days ????? Previous Discharges: None Highest Grade: E-3 Performance Ratings Available: Yes No MOS: 11C10/Indirect Fire Infantryman GT: 95 EDU: HS Grad Overseas: None Combat: None Decorations/Awards: NDSM, ASR V. Post-Discharge Activity City, State: Clinton Twp, MI Post Service Accomplishments: None listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 19 September 2002, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, Section II, AR 635-200, by reason of misconduct—for civil conviction, criminal sexual conduct 4th degree, with a general, under honorable conditions discharge. He was advised of his rights. On 20 September 2002, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to an administrative separation board, and did not submit a statement in his own behalf. The unit commander subsequently recommended separation from the Army 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 30 September 2002, 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 and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge. The analyst determined that the applicant’s discharge was appropriate because the quality of 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 the former Soldier’s 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 applicant contends he was discharged for a civil offense that had nothing to do with his Army service. However, Army Regulations state that a Soldier may discharged when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge is authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. Furthermore, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “3.” If reenlistment is desired, the applicant should contact the local recruiter to determine eligibility to reenlist. Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 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: 23 June 2010 Location: Chicago, IL Did the Applicant Testify? Yes No Counsel: NA Witnesses/Observers: NA Exhibits Submitted: Self-authored statement, DD Form 214. 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: NA Other: NA RE Code: Grade Restoration: No Yes Grade: NA 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 AR20100011126 ______________________________________________________________________________ Page 1 of 3 pages