Applicant Name:  ?????

Application Receipt Date: 071120	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See enclosed DD Form 293 submitted by the applicant.

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: 051101
Discharge Received: 			   Date: 060223   Chapter: 14       AR: 635-200
Reason: Misconduct (Civil Conviction)	   RE:     SPD: JKB   Unit/Location: Group Support Company, 1st Special Forces Group (Airborne), Fort Lewis, WA 98433-9500. 

Time Lost: Civil Confinement for 670 days from (040425-060223). 

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

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  24
Current ENL Date: Reenl/031020    Current ENL Term: 3 Years  ?????
Current ENL Service: 	0 Yrs, 6 Mos, 6 Days ?????
Total Service:  		5 Yrs, 7 Mos, 17 Days ?????
Previous Discharges: 	RA 980908-010301/HD
                                       RA 010302-031019/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 92G2P Food Service Operations   GT: 112   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: AAM, GCM, 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:
       Evidence of record shows that on 11 July 2005, the applicant was convicted in the Superior Court of Washington for Pierce County, on two charges: (1) assault in the first degree and count (2) bail jumping.  He was sentenced to prison not less than 102 months plus 60 months flat time and restitution.  On 19 December 2005, 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 (in that you appeared before the Superior Court of Washington for Pierce County and was found guilty of assault in the first degree and bail jumping), with an under other than honorable conditions discharge.  He was advised of his rights.  The applicant was notified of his rights through his defense counsel, was given 30 days to acknowledge receipt and return his election of rights; however, the applicant waived his rights by failing to do so in a timely manner, and did not submit a statement in his own behalf.  AR 635-200, Chapter 2, Paragraph 2(e)(3), if the Soldier declines to respond as to his waiver of rights, such declination will constitute a waiver.  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 of the separation action with an under other than honorable conditions discharge.  On 24 January 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, but a general discharge 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, the analyst found no mitigating factors that 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.  Because of the civilian conviction, the applicant diminished the quality of service below that meriting a fully honorable or general 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 the applicant's issue that it was an isolated incident; however, even though a single incident, the analyst concluded that 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.  Having examined all the circumstances, the analyst determined that the applicant's single incident of misconduct did indeed adversely affect the quality of service, brings discredit on the Army, and was prejudicial to good order and discipline.  Additionally, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “3.”  If the applicant desires to reenlist, he should contact the local recruiter to determine his 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.  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: 10 October 2008         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: NA

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						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 0    No change 5
Reason -     Change 0    No change 5
(Board member names available upon request)
								         EDGAR J. YANGER			 
								         Colonel, U.S. Army
								         President, Army Discharge Review Board
Issue a new DD Form 214  					
Change Characterization to: 			         
Change Reason to: NA
Other: NA										
RE Code: 									 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20070016737
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