Applicant Name: ?????

Application Receipt Date: 070823	

Prior Review    Prior Review Date: None

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

Issues: See DD Form 293 and attached documents 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: 010313
Discharge Received:     Date: 010417   
Chapter: 14    AR: 635-200
Reason: Misconduct
RE:     SPD: JKD
Unit/Location: B Co, Task Force Victory (Provisional), Fort Jackson, SC 29207 

Time Lost: None

Article 15s (Charges/Dates/Punishment): The analyst noted that it appears the applicant was reduced from E-6 to E-5, however, the document that reduced him is not part of the available record.

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Year/Month:  5203  
HOR City, State: Columbia, TN
Current ENL Date: 961202    Current ENL Term: 6 Years  ?????
Current ENL Service: 04  Yrs, 04 Mos, 16 Days ?????
Total Service:  14  Yrs, 01 Mos, 14 Days ?????
Previous Discharges: RA-870314-900805/HD
                                      RA-900806-921228/HD
                                      RA-921229-950806/HD
                                      RA-950807-961201/HD
Highest Grade: E-6
Performance Ratings Available: Yes    No 
MOS: 11B1P Infantryman   GT: 114   EDU: HS Grad   Overseas: Korea/Southwest Asia   Combat: Saudi Arabia (901215-910408)
Decorations/Awards: ARCOM-3, AAM-5, AGCM-4, NDSM, SWASM-3 BSS, NCOPDR-2, ASR, OSR-2, MF & OM, KLM-SA, KLM-KU, CIB

V.  Post-Discharge Activity
Post Service Accomplishments: The applicant submitted documentation which shows he completed a Sex Offender Treatment Program in the spring of 2002.

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      The evidence of record shows that on 8 March 2001, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, AR 635-200, by reason of misconduct—conviction by civil court and serious misconduct for being convicted of sexual battery by the State of Tennessee (010226), and on 11 June 1998, received a General Officer Memorandum of Reprimand for DUI, with an under other than honorable conditions discharge.  He was advised of his rights. On 8 March 2001, 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, and submitted a statement in his own behalf.  On 14 March 2001, the applicant's chain of command recommended disapproval of the applicant's conditional waiver. On 14 March 2001, the separation authority disapproved the applicant's conditional waiver and referred the case to the standing administrative separation board.  On 19 March 2001, the applicant was notified to appear before an administrative separation board and advised of his rights.  On 22 March 2001, again 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, and submitted a statement in his own behalf.   On 4 April 2001, the administrative separation board convened.  The applicant was confined by the State of Tennessee and waived counsel prior to convening the administrative separation board.  The applicant would have had the opportunity to appear if he had requested.  The recorder stated that after being convicted the applicant had three weeks to get his affairs worked out, and the Government did not schedule the board so as to hinder the  applicant from appearing.  The board recommended that the applicant be discharged with issuance of character of service of under other than honorable conditions.  On 5 April 2001, 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 applicant was to be reduced to the lowest enlisted rank.   
      
      The analyst noted that on the applicant's DD Form 214 block 26, Separation Code reads "JKD, " Misconduct (AWOL), block 29 dates of time lost during this period does not show any lost time.  Therefore, block 26 should read "JKB," Misconduct (Civil Conviction).
      
      The analyst noted that a memorandum from USAEREC stated that the applicant received General Officer Memorandum of Reprimand dated 11 June 1998, however, the document is not part of the available record.
      
      The applicant's record contains three Military Police Reports dated 17 July 1999, 30 July 1999 and 13 August 1999. 

      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 during the period of enlistment under review, the issues and documents he submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  Retention is normally only considered in exceptionally meritorious cases when clearly in the best interests of the Army.  Because of the civilian conviction, the applicant diminished the quality of his service below that meriting a fully honorable or general, under honorable conditioins discharge.  The analyst noted that an administrative separation board was properly conducted and that the separation authority determined the specific offenses warranted separation.  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.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.  Furthermore, the analyst noted the applicant's issues and acknowledges the applicant's  many accomplishments outlined in his application and in the documents with his application.  However, in review of the applicant’s entire service record, the analyst found that these accomplishments did not overcome the reason for discharge and characterization of service granted. In view of the foregoing, 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: 13 August 2008              
Location: Washington, DC

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: 	       	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: None 
Other: NA
RE Code:  
Grade Restoration:   No   Yes  Grade: None

XI.  Certification Signature and Date
Approval Authority: 

MARK E. COLLINS
Colonel, U.S. Army
President, Army Discharge Review Board

Official: 


CHRISTINE U. MARTINSON			DATE: 18 August 2008
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20070011763
______________________________________________________________________

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