Applicant Name:  ?????

Application Receipt Date: 2008/03/10	Prior Review:     Prior Review Date: NA     

I.  Applicant 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?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 071202
Discharge Received: 			   Date: 080206   Chapter: 14       AR: 635-200
Reason: Misconduct, (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: B Co, 3-69 AR Regt, Fort Stewart, GA 

Time Lost: None

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

Courts-Martial (Charges/Dates/Punishment): 071112, SCM, maltreatment of Soldiers x 18 on diverse occasions between (061001-070801), reduction to E-5, forfeiture of $1549 x 1.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  25
Current ENL Date: 040426    Current ENL Term: 3 Years  4 Weeks/Retained in service 287 days for the convenience of the Government per up 10 USC 12305.  Further, the applicant extended for 14 months (070602).
Current ENL Service: 	03 Yrs, 09Mos, 11Days ?????
Total Service:  		09 Yrs, 07Mos, 21Days In block 12e on the DD Form 214, total prior inactive service shows a period of 01 Yrs, 07 Mos, 16 days.  However, the 01 year period cannot be substantiated by the available record.   
Previous Discharges: 	USMC-990615-030908/HD
                                       USMCR-030909-040425/NA
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 11B10 Infantryman   GT: 97   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq (050110-051230)/Iraq (070116-080111)
Decorations/Awards: ARCOM, AGCM, NDSM, ICM, GWOTEM, GWOTSM, NCOPDR, ASR, 0SR-2, CIB, MCGCM, NSSDR, 

V.  Post-Discharge Activity
City, State:  Mishawaka, IN
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 2 December 2007, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, AR 635-200, by reason of misconduct-commission of a serious offense for  being convicted by a Summary Court-Martial for eighteen specifications of cruelty and maltreatment of subordinates (071112), with a general, under honorable conditions discharge.  He was advised of his rights.  The applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily unconditionally waived 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 commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge.  The senior intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.   On 30 December 2007, the separation authority accepted the conditional waiver request, waived further rehabilitative efforts 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.

       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 document 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 the applicant's issue and found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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: 14 January 2009         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 characterization of service is too harsh, and as a result it is inequitable.  The Board determined that the overall length and quality of the applicant’s service; to include his two tours of combat service, mitigated the discrediting entry in his service record.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the Board determined that the reason for discharge was both proper and equitable and voted not to change it.  This action entails a restoration of grade to SGT/E-5.  

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

Case Number AR20080003811
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