Applicant Name:

Application Receipt Date: 070815	

Prior Review    Prior Review Date: None

I.  Applicant Request
Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and documentation submitted by the Applicant

II.  Were Proper Discharge and Separation Authority procedures followed?  
Yes    No        Tender Offer:   ?????

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Original Character of Discharge
Unit CDR Recommended Discharge:    Date: 030207
Discharge Received:     Date: 030909   
Chapter: 14    AR: 635-200
Reason: Misconduct
RE:     SPD: JKB
Unit/Location: HHB, 214th FA Bde, Ft Sill, OK 

Time Lost: The Applicant was incarcerated in connection his with civilian conviction for 264 days from 021219-030909.

Article 15s (Charges/Dates/Punishment): None

Court-Martials (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Year/Month:  76/11  
HOR City, State: Tulsa, OK
Current ENL Date: 010927    Current ENL Term: 3 Years  ?????
Current ENL Service: 01 Yrs, 2 Mos, 21 Days ?????
Total Service:  08 Yrs, 10 Mos, 20 Days 

Applicant's DD Form 214, Line 12c., should read '01 year, 02 months, 21 days'.  Line 12d., should read '00 years, 03 months, 26 days.  Line 12e., should read '01 year, 02 months, 08 days.
Previous Discharges: RA 950608-950731/UNC
                                      RA  940526-940728/NIF
Highest Grade: E-4
Performance Ratings Available: Yes    No 
MOS: 92Y  Unit Supply Specialist   GT: 114   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, ASR

V.  Post-Discharge Activity
Post Service Accomplishments:  None listed by the Applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      The evidence of record shows that on 7 February 2003, the unit commander notified the Applicant of initiation of separation action under the provisions of Chapter 14, AR 635-200, by reason of misconduct—civil conviction based on finding of guilty of lewd molestation for which Applicant was sentenced to 13 years incarceration, with an under other than honorable conditions discharge.  The Applicant was advised of his rights.  The Applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board, contingent upon his receiving a characterization of service of no less favorable than honorable.  The Applicant did not submit a statement on his own behalf.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed discharge action and recommended approval with an under other than honorable conditions.  On 18 June 2003, the Applicant was notified to appear before an administrative separation board and advised of his rights.  On 10 July 2003, the administrative separation board convened.  The Applicant was not physically present as he was confined in a State of Oklahoma correctional facility, however, the Applicant was listening to the proceedings via teleconference.  The Applicant's counsel was present at the proceedings.  Subsequently, the board recommended that the Applicant be discharged with issuance of a character of service of under other than honorable conditions.  On 28 August 2003, the separation authority approved the recommendation of the administrative separation board and directed that the Applicant be discharged with a characterization of service of under other than honorable conditions.
      The Record contains a CID Report of Investigation dated 9 June 2003.

      b.  Legal Basis for Separation:  
      Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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 he submitted, the analyst found no mitigating factors that would merit an upgrade of the Applicant's discharge.  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 his 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 the Applicant’s service mitigated the misconduct or poor duty performance.  Furthermore, the analyst noted that even though a single incident, the discrediting entry constituted a departure from the standards of conduct expected of soldiers in the Army.  The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The analyst having examined all the circumstances determined that the Applicant's single incident of misconduct did adversely affect the quality of his service, brings discredit on the Army, and was prejudicial to good order and discipline.  This single incident of misconduct clearly diminished the quality of the Applicant's service below that meriting a fully honorable discharge.  Additionally, eligibility for veteran's benefits, to include educational benefits under the Montgomery GI Bill, does not fall within the purview of the Army Discharge Review Board.  Accordingly, the Applicant should contact a local office of the Department of Veterans Affairs for further assistance.  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: 17 September 2008              
Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: NA




VIII.  Board Decision
The discharge was:			Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The characterization of service was:   Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The narrative reasons were: 	       	Proper	 	Improper	
						Equitable	 	Inequitable	

DRB voting record:  		      Change 0    No change 5   - Character
		 			      Change 0    No change 5   - Reason
					      (Board member names available upon request)

IX.  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.  

								        
X.  Board Action Directed
No Change 
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 and Date
Approval Authority: 

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

Official: 


CHRISTINE U. MARTINSON			DATE: 17 Spetember 2008
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20070011290
______________________________________________________________________


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