DEPARTMENT OF THE ARMY
Army Discharge Review Board
1901 South Bell Street
Arlington, VA 22202-4508
1 April 2005
Office of the President
After careful review of your application, military records and all
other available evidence, the Army Discharge Review Board determined that
you were properly and equitably discharged. Accordingly, your request for
a change in the character and/or reason of your discharge is denied.
You have now exhausted your appeals with the Army Discharge Review
Board. You may request a reconsideration only if you have new, substantial
and relevant evidence to present which was not readily available during
this review. If not, your recourse is to apply to the Army Board for
Correction of Military Records. An application for correction of your
military record, DD Form 149, is enclosed. Send the completed and signed
DD Form 149 to: ARBA Support Division, Attention: SFMR-RBR-SL 9700 Page
Avenue, St. Louis, Missouri 63132-5200. You must submit this form within
three years from the date of this letter.
If you believe that the decision in your case is unclear, not
responsive to the issues raised, or does not otherwise agree with the
decisional document requirements of DoD Directive 1332.28, you may submit a
complaint in accordance with Enclosure 5 of that Directive. The complaint
procedure does not permit you to challenge the merits of the decision, but
is designed solely to ensure that the decisional document meets applicable
requirements for clarity and responsiveness. You may obtain a copy of DoD
Directive 1332.28 by writing to: Army Review Boards Agency, Attention:
(Reading Room), The Pentagon, Washington, DC 20310-1809.
Sincerely,
Robert L. House
Colonel, U.S. Army
President
Enclosure
CF
MILITARY REVIEW BOARDS
Case Report & Directive
PART I - IDENTIFICATION DATA
NAME: ADDRESS:
PHONE:
COUNSEL: ADDRESS:
PHONE:
ALTERNATE PERSON(S) TO BE NOTIFIED: ADDRESS:
RELATIONSHIP: PHONE:
TYPE REPORT:
( X ) Original
( ) Addendum
REMARKS
Case Management Data
( X ) Response to other correspondence required upon completion of case.
( ) DD Form 149 in file. Send case to ABCMR.
OSA FORM 172 (REVISED) 22 May 98 Cover Sheet
PART II - APPLICATION DATA
(Note: Part I deleted under the Privacy Act on Reading Room copy)
1. Character of Discharge: General, Under Honorable Conditions
2. Date of discharge (or REFRAD): 040106
3. Authority for separation:
a. Regulation: Chapter 14, Paragraph 14-12c, AR 635-200
b. Reason: Misconduct
4. Prior review(s): NONE
PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review
1. Service data: 2. Awards and
decorations:
ARCOM (2d Awd) AFRMw/MDev
a. Period entered for: NIF* AAM(3rd Awd)
NCOPDRw/Num2
b. Entry date: 030210 GCMDL ASR
c. Age: 37 Years DOB: 650730 ARCAM(3rd Awd) OSR
d. Educational level: HS Grad NDSM(2nd Awd)
ARCOTR(3rd Awd)
e. Aptitude area score: AFEM NM
GT: NIF 3. Highest grade
achieved:
f. Length of Service: E6
0 Year(s) 10 Month(s) 27 Day(s)
4. Performance evaluations:
See OMPF
*NOTE: Applicant was a member of the USAR ordered to active duty in
support of Enduring Freedom/Iraqi Freedom. Activation orders not in file;
last available USAR reenlistment contract in record dated 981122 for 6
years.
PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review - Continued
5. Periods of unauthorized absence: NONE
Status Inclusive dates
AWOL
Mil conf
Civil conf
Other
6. Nonjudicial punishment:
Date Offense(s)
031218 Derelict in performance of duties by willfully failing to
safeguard from assault of abuse captured Iraqi detainees
that you were escorting (030512); maltreat Iraqi
detainees,
three specifications; make a false official statement
(General Officer Grade)
7. Court-Martial data: NONE
a. SCM:
Date Offense(s)
b. SPCM:
Date Offense(s)
c. GCM:
Date Offense(s)
8. Remarks: Dates of applicant’s prior service not in the record.
Total
time in service calculated from DD Form 214.
SECTION B - Prior Service Data
See #8 Remarks
Other discharge(s):
Service From To Type Discharge
PART IV - PREHEARING REVIEW
SECTION A-ANALYST’S ASSESSMENT
l. Facts and Circumstances:
a. The evidence in the official record shows that the applicant was
initially charged under the UCMJ with multiple specifications of abuse of
Iraqi detainees, making a false official statement, and dereliction of
duty. On 7 January 2004, the charges and their specifications were
dismissed with prejudice, and the applicant was administratively processed
for separation under the provisions of Chapter 14, AR 635-200, by reason of
misconduct-commission of a serious offense. The administrative discharge
documentation is not in the official record. The applicant submitted a
copy of the notification and recommendation of separation; however, these
documents are not authenticated with the signature of the unit commander,
and the applicant’s election of rights is incomplete. However, the record
contains a properly constituted DD Form 214 (Certificate of Release or
Discharge from Active Duty) which was authenticated by the applicant’s
signature. His DD Form 214 indicates that he was discharged under the
provisions of Chapter 14, AR 635-200 by reason of misconduct-commission of
a serious offense, with a characterization of service of general, under
honorable conditions.
b. On 6 January 2004, the applicant was discharged. At the time of
discharge, the applicant had completed 10 months and 27 days of active
military service in the period under review and had a total of 18 years and
11 months military service. [Total time in service does not necessarily
denote qualifying service for retired pay (see 10 USC 12732).]
2. Legal/Regulatory Basis for Separation Action: Army Regulation 635-200
sets forth the basic authority for the separation of enlisted personnel.
Chapter l4 establishes policy and prescribes procedures for separating
members for misconduct. Specific categories include minor disciplinary
infractions, a pattern of misconduct, 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, but
a general discharge under honorable conditions or an honorable discharge
may be granted.
SECTION B-APPLICANT’S SUBMISSIONS
1. Issue(s) of propriety and/or equity submitted by applicant or counsel.
As stated on applicant’s DD Form 293.
2. Exhibit(s) submitted:
A-1: DD Form 293, dated 040803, with multiple enclosure(s).
A-2: Counsel Issues: NONE
B-l: Other Documents: NONE
PART IV - PREHEARING REVIEW (CONTINUED)
SECTION C - Medical and/or Legal Advisory Opinion
Referred to ( ) Medical Advisor ( ) Legal Advisor
a. Medical prehearing comments (if applicable):
b. Legal prehearing comments (if applicable):
PART V - SUMMARY OF HEARING
SECTION A-Attendees and exhibits
1. Review/hearing information:
a. Type requested:
( ) Records review ( X ) Hearing
b. Type Held:
( )Records review ( X ) Hearing
( ) Tender Offer
c. Review/hearing location and date: Washington, D.C. on 8 August
2005.
d. Appearance by:
Applicant ( X ) Yes ( ) No
Counsel ( ) Yes ( X ) No
e. Applicant testified: ( X ) Yes ( ) No
f. Counsel presentation: ( X ) Yes ( ) No
g. Witness(es) testified: ( ) Yes ( X ) No
2. Exhibit(s) submitted at hearing:
PART VI - ISSUES AND FINDINGS
1. a. Applicant's issue(s) of propriety and/or equity:
( X ) Same as those listed on DD Form 293 and Part IV, Section A
of this case report and directive.
( ) Revised issue(s) furnished in writing by applicant as
follows:
( ) Additional issue(s) identified during review/hearing as
follows:
b. Request: ( X ) Recharacterization ( X ) Change of Reason
2. Finding(s), conclusion(s), and reason(s) for the Board's decision(s) on
issues of propriety and/or equity:
a. Propriety: The applicant has not submitted an issue of
propriety and the ADRB has not otherwise relied upon an
issue of propriety to change the discharge.
b. Equity: The parenthetical number(s) below correspond(s) to
the issue number(s) on the DD Form 293, or in Part VI,
Paragraph 1, above.
(1) The issue is rejected. The Board carefully examined the
applicant’s record of service during the period of enlistment under review
and heard his testimony. There was a full consideration of all faithful
and honorable service as well as the infractions of discipline, the extent
thereof, and the seriousness of the offenses. The commission of serious
offenses compelled the applicant’s command to consider him for separation.
Retention is normally only considered in exceptionally meritorious cases
when clearly in the best interests of the Army. Because of the applicant’s
serious misconduct, the applicant diminished the quality of his 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 his service mitigated the misconduct. The
evidence of record shows that the applicant’s Article 32 investigation
included the testimony of 31 separate witnesses whose testimony was deemed
credible and probable cause was found to substantiate that the misconduct
occurred. The applicant accepted nonjudicial punishment for failing to
safeguard detainees from abuse; for maltreating detainees; and for making a
false official statement. Further, the applicant’s contentions on whether
the misconduct occurred relate to evidentiary and procedural matters which
should have been raised and conclusively adjudicated at the time of his
discharge, and furnish no basis for recharacterization of his service. The
Board, being convinced that the reason for discharge and the
characterization of service were both proper and equitable, voted to deny
relief.
3. Response(s) to item(s) not addressed as decisional issue(s): NONE
PART VII - BOARD ACTION
SECTION A - Conclusions/Decisions/Vote
1. Board conclusion(s):
The discharge was:
( X ) Proper.
( ) Improper as to characterization. Change characterization to
.
( ) Improper as to reason. Change reason to
under .
( X ) Equitable.
( ) Inequitable as to characterization. Change characterization to
.
( ) Inequitable as to reason. Change reason to
under .
( ) Both proper and equitable, but characterization/reason for
separation cited was an administrative/clerical error and should
be changed to under
.
2. Voting record: Change No Change
Reason 0 5
Characterization 0 5
The names and votes of the members of the Board are recorded in
Part IX of this document and can be obtained by writing to the address
below. The request must contain the CASE NO. located in the upper right
corner of this document.
Department of the Army Review Boards Agency
ATTN: Promulgation Team
1901 South Bell Street, 2nd Floor
Arlington, VA 22202-4508
3. Minority views: NONE
PART VII - BOARD ACTION
SECTION B - Verification and Authentication
Case report reviewed and verified
Ms. McKim-Spilker
Case Reviewing Official
PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE
NONE
SECTION B - CERTIFICATION
Approval Authority:
ROBERT L. HOUSE
Colonel, U.S. Army
President, Army Discharge
Review Board
Official:
ESMERALDA G. PROCTOR
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
EXHIBITS:
A - Application for review of discharge C - Other
B - Material submitted by applicant
INDEX RECORD:
AR Number: 20040005578 INDEX NUMBERS: A9405
Date of Review: 050808 A9217
Character of Service: GD A9235
Date of Discharge: 040106 A0101
Authority: AR 635-200 C14
Reason: A6730
Results of Board Action/
Vote/Affirmation: NC 5-0 A
PART IX - VOTING RECORD
Name Reason Characterization
CHANGE NC HON UHC NC
UNCHAR
1. Mbr X X
2. Mbr X X
3. Mbr X X
4. Mbr X X
5. PO X X
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