Applicant Name:  ?????

Application Receipt Date: 2011/11/17	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he wants to be cleared of the wrongful Article 15 and wrongfully being chaptered out of the U.S. Army.  He would like to be reinstated back onto active duty.  

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: undated
Discharge Received: 			   Date: 101102   Chapter: 14    AR: 635-200
Reason: Misconduct (Civil Conviction)	   RE:     SPD: JKB   Unit/Location: A Co, 204th Brigade Support Battalion, Fort Carson, CO 

Time Lost: Civil Confinement: (091221-091222) for 2 days; (100709-100712) for 4 days, a total of 6 days

Article 15s (Charges/Dates/Punishment): 090804, wrongful use of methamphetamines, reduced to E-4; forfeiture of $1,063 x 2 months; 45-day extra duty; 45-day restriction (suspended), (FG)

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  24
Current ENL Date: 070726    Current ENL Term: 6 Years  ?????
Current ENL Service: 	03 Yrs, 03 Mos, 02 Days ?????
Total Service:  		05 Yrs, 08 Mos, 02 Days ?????
Previous Discharges: 	RA (050225-070725) / HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 89B (Ammunition Specialist)   GT: 112   EDU: HS Equiv.   Overseas: None   Combat: None
Decorations/Awards: ARCOM;  AAM; AGCM; NDSM; GWOTSM; ASR

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on or about 21 September 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-5, AR 635-200, by reason of misconduct—for civil conviction of domestic violence (100322), with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 21 September 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action,and submitted 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 action and recommended approval of the separation with a general, under honorable conditions discharge.  
       On 5 October 2009, the separation authority waived further rehabilitation and directed the applicant’s discharge 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 which would merit an upgrade of the applicant's discharge.  
       
       The analyst determined that the applicant’s discharge was appropriate because the quality of his 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 that he wants to be cleared of a punishment under Article 15.  However, request to remove the Article 15 does not fall within the purview of this Board.  Army Regulation (AR) 27-10 (Military Justice), paragraph 3-43e, states in pertinent part that Army Regulation 15-185 (Army Board for Correction of Military Records(ABCMR)) contains the policy and procedures for applying for such corrections of error or removing an injustice by the Secretary of the Army.  Absent compelling evidence to the contrary, a properly completed, facially valid DA Form 2627 will not be removed from a Soldier’s record by the ABCMR.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization.  
       
       The applicant contends that he was wrongfully discharged because the charges against him were dismissed before he left the Army; therefore, he should be reinstated onto active duty.  However, there is a presumption of regularity in the conduct of governmental affairs.  This presumption is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.   The available evidence shows the applicant entered a plea of guilty to the offenses of "Criminal Mischief" of "less than $500" evolving from a domestic violence incident.  The plea of guilty was deferred for 20 months provided the applicant complied with the conditions imposed with a stipulation that, if the applicant satisfactorily completes all the conditions upon which the entry of a judgment of conviction and imposition of a sentence is deferred, the district attorney will consent to the entry by the court of an order allowing the applicant, as the defendant, to withdraw his guilty plea whereupon the district attorney will move for dismissal of the case.  The available evidence further shows that the applicant successfully completed the conditions imposed and the plea was withdrawn and dismissed on 5 October 2011, nearly a year after his discharge.  Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be considered for discharge when convicted by a civil court, or when action is taken that is tantamount to a finding of guilty when a punitive discharge is authorized for a similar offense under the Manuals for Court Martial.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the presumption of regularity should not be applied in this case.  
       
       The analyst noted the applicant's issues about his desire to rejoin the Service.  The applicant was appropriately assigned an RE code of 3.  The analyst found no bases upon which to recommend a change to the applicant’s reason for discharge.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  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. 
       The analyst found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
       
       Therefore, the analyst determined 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: 11 May 2012         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated 14 November 2011; Letter to U.S. Senator U, dated 19 October 2011 with its listed enclosures; Response from Senator U, dated 9 November 2011 with its enclosure.




































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						
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 AR20110022928
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