Applicant Name: 

Application Receipt Date: 071012	

Prior Review    Prior Review Date: None

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

Issues: See DD Form 293 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: 060203
Discharge Received:     Date: 060719   
Chapter: 14-12c    AR: 635-200
Reason: Misconduct, (Serious Offense)
RE:     SPD: JKQ
Unit/Location: C Company, 2nd BN, 508th Parachute Infantry Regiment, 82nd ABN Div, Fort Bragg, NC 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 060202, on or between (050730-060115), commit sodomy with another service member, wrongfully engage in sexual acts with another person while being filmed between (050630-060115), violate a lawful general regulation by wrongully having a BAC over 0.20 while on DRF 1 (060202), physically control a vehicle while having a BAC over 0.20 (060202), reduction to E1, forfeiture of $636 x 2, 45 days extra duty, 45 days restriction (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Year/Month:  83/02  
HOR City, State: Toledo Oregon
Current ENL Date: 030702    Current ENL Term: 3 Years  ?????
Current ENL Service: 03 Yrs, 00Mos, 18Days ?????
Total Service:  05 Yrs, 09 Mos, 27 Days ?????
Previous Discharges: ARNG 000923-011105/NA
                                      ADT    011106-020415/HD
                                      ARNG 020416-030701/NA
Highest Grade: E4
Performance Ratings Available: Yes    No 
MOS: 11B1P/Infantryman   GT: NIF   EDU: HS Grad   Overseas: Southwest Asia x 2   Combat: Iraq (030808-040123) and (041206-050326)
Decorations/Awards: ARCOM, ACGM,ICM, GWOTEM, GWOTSM, ASR, CIB, EIB

V.  Post-Discharge Activity
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      The evidence of record shows that on 3 February 2006, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, AR 635-200, by reason of misconduct—for commission of a serious offense: committing sodomy, driving while impaired and conduct being prejudicial to good order and discipline and of a nature to bring discredit upon the armed forces , with a Under Other than Honorable Conditions Discharge.  He was advised of his rights.  The applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board, and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions  On 6 February 2006, the applicant voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than a general discharge.  On 5 April 2006, the separation authority disapproved the conditional waiver and appointed a board of officers.  The applicant was notified to appear before an administrative separation board and advised of his rights.  On 24 May 2006, the applicant again consulted with legal counsel and waived consideration of his case by an administrative separation board.  On 1 June 2006, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of under other than honorable conditions.
      
      
      
      

      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 several mitigating factors that would merit a partial upgrade of the applicant's characterization of service to general, under honorable conditions.  The analyst does not condone the applicant’s misconduct; however, the evidence in this case supports a conclusion that the characterization of service was too harsh, and as a result it is inequitable.  The analyst found that the length of the applicant's service to include his combat service mitigated the discrediting entries in his service record.  Accordingly, the analyst recommends that the applicant’s characterization of service be upgraded to general, under honorable conditions.  However, the analyst determined that the reason for discharge was fully supported by the record and therefore, remains both proper and equitable.

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 12 September 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: 	       	Proper	 	Improper	
						Equitable	 	Inequitable	

DRB voting record:  		      Change 5    No change 0   - 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 characterization of service was too harsh based on the applicant’s length and quality of his service to include his combat service and the circumstances surrounding his misconduct and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to fully honorable.  The Board determined that the reason for discharge was proper and equitable and voted not to change it.  

								        
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: ?????

XI.  Certification Signature and Date
Approval Authority: 

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

Official: 


CHRISTINE U. MARTINSON			DATE: 12 September 2008
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20070013988
______________________________________________________________________


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