Applicant Name:  ?????

Application Receipt Date: 2011/02/03	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, “WAS GIVEN DISCHARGE DUE TO ALLIGATIONS FROM A FEMALE RECRUIT THAT CLAIMED I ASSAULTED HER.  MY COMMAND DID NOT GIVE ME A SEPERATION BOARD HEARING AND REFERED THE 15-6 INVESTIGATION TO THE LOCAL AUTHORITES FOR CRIMINAL CHARGES.  CHARGES OF RAPE, CRIMNAL ATI’EPTED RAPE, INVOLINTARY DEVIANT SEXUAL ASSAULT, SEXUAL ASSUALT, INDECENT ASSUALT I, INDECENT ASSUALT 2.  CASE WENT BEFORE CIVILAN TRIAL 9 OCT 2009 AND WAS FOUND NOT GUILTY 10 OCT 2009 OF ALL CHARGES, AND RECORD WAS EXPUNGED.  IN 01 DEC 2008 WAS GIVIN AN HONORABLE DISCHARGE WITH AN RE 3 FROM THE PA ARMY NATIONAL GUARD.  SEPERATION CODE OF JKM (PATTERN OF MISCONDUCT) WAS PLACED IN BLOCK 26.”                            

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: 070926   Chapter: 12     AR: AR 135-178
Reason: Misconduct	   RE:     SPD: JKM   Unit/Location: PA ARNG Recruiting and Retention Det, Fort Indiantown Gap, PA                     

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:  33
Current ENL Date: 050818    Current ENL Term: 4 Years  ?????
Current ENL Service: 	2    Yrs,  1   Mos, 9 Days ?????
Total Service:  		18  Yrs,   0  Mos, 3 Days ?????
Previous Discharges: 	USAR 890923 - 910422/HD
                                       RA      910423 - 960928/HD
                                       RA      930929 - 960930/HD
                                       ARNG 961001 - 980428/HD
                                       RA       980429 - 000614/HD
                                       RA       000615 - 020626/HD
                                       RA       020627 - 030907/HD
                                       ARNG  030908 - 050817/HD
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 11B30 Infantryman   GT: 109   EDU: HS Grad   Overseas: Cuba   Combat: Bosnia
Decorations/Awards: ARCOM x 3, AAM x 2, AGCM x 4, NDSM w/BS, AFEM, GWOTSM, HSM, NPDR, ASR, NAM, Air Force-PUC, JMUA,

V.  Post-Discharge Activity
City, State:  Mill Hall, PA
Post Service Accomplishments: None

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant’s signature.  The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 12, AR 135-178,  by reason of misconduct, with a characterization of service of general, under honorable conditions.  Furthermore, the DD Form 214 shows a Separation Code of JKM (i.e.misconduct, other) with a reentry eligibility (RE) code of "3."   

       b.  Legal Basis for Separation:  
       Army Regulation 135-178 sets forth the basic authority for the separation of enlisted personnel from the United States Army Reserve.  Chapter 12 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, and convictions by civil authorities.  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 available military records, the issue and documents submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant’s discharge.  
       
       The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  However, the applicant’s record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge and the analyst presumed government regularity in the discharge process.  
       
       The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 12, AR 135-178, for misconduct, with a characterization of service of general, under honorable conditions.  Barring evidence to the contrary, the analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       The applicant's contentions were carefully considered.  However, the analyst is unable to determine whether these contentions have merit because the facts and circumstances leading to the discharge are unknown.  The burden of proof remains with the former Soldier to provide the appropriate documents or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.  If the applicant desires a personal appearance hearing, it will still be his responsibility to meet the burden of proof since the evidence is not available in the official record.
       
       Therefore, based on the available evidence, the analyst presumes government regularity in the discharge process and concludes that it appears 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: 16 September 2011         Location: Washington, D. C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

Exhibits Submitted: DD Form 293 with a self-authored statement, NGB 22, and a court order showing not guilty verdict.



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: 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 AR20110002290
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