Applicant Name:  ?????

Application Receipt Date: 2011/08/22	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states:  "I was discharged while a criminal prosecution was pending. The command under which I served at the time of my arrest made no attempt to determine the likelihood of conviction or acquittal. The stated reason for the chapter proceeding was “commission of a serious offense”. The reason for discharge listed on the DD214 was “misconduct”. I firmly believe that my service in the United States Army was Honorable. I served with the 1st Ranger Battalion in the mid 1980’s (1985, ‘86, and ‘87) where I was once selected as Soldier of the Quarter. I served with the 12th SFG (A) USAR in the late 1980’s and attended the Special Forces Qualification Course as a reservist. I returned to active duty in 1990 and served with the 7th Special Forces Group for the next five years. I attended U.S. Army Drill Sergeants School at Ft. Jackson, SC, in the spring of 1995 and served as a Drill Sergeant from July of 1995 through August of 1997. I had a fourteen month break in service and returned to active duty as a Sergeant First Class in November of 1998. In September of 2001 I was arrested (surrendered myself) and charged with twenty-one felony counts in Fayetteville, NC. I was placed in Cumberland County Jail, where I stayed for (four days shy of) eight months under a bond of $133,000. The attacks of September 11th happened the day after I surrendered myself. After nearly eight months in jail, and no movement in the direction of trial, my attorney Mr. Jack Carter of Fayetteville, NC, spoke with the prosecutor’s office about releasing me. An agreement was reached. My bond was then reduced to $50,000 dollars, unsecured. I walked out on my own signature. After spending the next twenty-seven months on pre-trial release, with no movement toward trial, my attorney again contacted the prosecutor’s office and attempted to resolve this case. The prosecutor reviewed my case and agreed it was not something he was anxious to take to trial, due to evidence being week."  The applicant provides an attachment to the Board in which he continues with his explanation (Enclosed).

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: 011220
Discharge Received: 			   Date: 020412   Chapter: 14-12c(1)    AR: 635-200
Reason: Misconduct	   RE:     SPD: JFF   Unit/Location: D Co, 1st Special Warfare Training Group, Fort Bragg, NC 

Time Lost: None listed

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:  34
Current ENL Date: 981117    Current ENL Term: 3 Years  with a 3 months extension
Current ENL Service: 	03 Yrs, 04 Mos, 26 Days ?????
Total Service:  		14 Yrs, 04 Mos, 16 Days ?????
Previous Discharges: 	?????
Highest Grade: E-7		Performance Ratings Available: Yes    No 
MOS: 18C40/Special Forces Engineer Sergeant   GT: 122   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: ARCOM, AAM, AGCM, NDSM, NCOPDR-2, ASR, SF TAB, RANGER TAB

V.  Post-Discharge Activity
City, State:  Missoula, MT
Post Service Accomplishments: None listed

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 does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c(1) by reason of misconduct, with a characterization of service of under other than honorable conditions.  Furthermore, the DD Form 214 shows a Separation Code of JFF (Secretarial Authority) with a reentry eligibility (RE) code of "3."   
       
       The applicant provided documentation with his application that indicates that on 20 December 2001, the unit commander notified him of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct—commission of a serious offense, for being arrested for ten counts of second degree exploitation of a minor and eleven counts of third degree sexual exploitation of a minor; a search of his residence produced materials of an extremist nature and evidence of the said extremist literature which was prohibited.  The unit commander recommended an under other than honorable conditions discharge.  
       
       An additional document provided with the application indicates the applicant pled guilty to three different offenses of attempted third degree exploitation of a minor and was sentenced to 45 days of confinement and given credit for 239 days of time served.

       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 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 contends that he was unfairly treated and discharged from the Army because he was only convicted of three misdemeanors and had 14 years of excellent service.  Further he states his DD Form 214 is in error because the authority under which he was discharged Paragraph 14-12c(1) is for AWOL and he was not AWOL.    
       
       The applicant’s record is void of the specific facts and circumstances concerning the events which led to the former Soldier’s discharge from the Army.  However, the applicant’s record does contain 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 14, AR 635-200, paragraph 14-12c by reason of misconduct, with a characterization of service of under other than 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 would have been 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 not contained in the official record.  The burden of proof remains with the former Soldier to provide the appropriate documents (i.e., the entire discharge packet) 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: 7 March 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: Mr. Jack Carter, 210E. Russell St., Fayetteville, NC

Witnesses/Observers: NA 

Exhibits Submitted: A self-authored statement, DD Form 214, NC Court documents, resume, commander's nitification memorandum.

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review and the analyst’s recommendation and rationale, the Board determined that the narrative reason for the discharge was both proper and equitable and voted to deny relief.  



























?????
        
IX.  Board Decision						
Board Vote:
Character - Change 0    No change 5
Reason -     Change 0    No change 5
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:




EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder





















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 AR20110017169
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