Applicant Name:  ?????

Application Receipt Date: 080327	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and supporting 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: 060501
Discharge Received: 			   Date: 060803   Chapter: 14-12C       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: B Co., 577th ENGR BN, Fort Leonard Wood,  MO 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 060403, having knowledge that SPC M. C. had actually committed serious offenses, to wit:  murder, aggravated assault, wrongful damage to non-military property, wrongfully conceal such serious offenses by hiding the motor vehicle used in the commission of the offenses (050809-050818), obstruction of justice and made a false official statement (050808), failure to obey a lawful order, wrongfully socializing and drinking at a nightclub with lower enlisted soldiers who were under his authority (050813), wrongfully endeavor to impede an investigation (050808), reduction to E4, forfeiture of $967.00 for two months, and extra duty for 45 days (FG). 

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  22
Current ENL Date: 020513    Current ENL Term: 04 Years  ?????
Current ENL Service: 	04 Yrs, 02Mos, 21Days ?????
Total Service:  		04 Yrs, 02Mos, 21Days ?????
Previous Discharges: 	None (applicant was retained 81 days beyond his ETS pending court-martial charges)
Highest Grade: E5		Performance Ratings Available: Yes    No 
MOS: 21F Crane Ops   GT: 104   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: AAM, AGCM, NDSM, ASR, GWOTSM, NCOPDR.

V.  Post-Discharge Activity
City, State:  Dixon, MO
Post Service Accomplishments: Not Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 01 May 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 knowing that SPC M. C. had committed offenses punishable by the UCMJ, to wit: aggravated assault, wrongful damage of nonmilitary property and murder (050809), assisting a SPC by hiding the motor vehicle used in the commission of offenses, obstruction of justice by making a false official statement to military investigator (050808), wrongfully socializing and drinking at a nightclub with lower enlisted soldiers who were under his authority (020513), wrongfully endeavor to impede an investigation by making a false official statement to investigators (050808),  with an 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, 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 an other under honorable conditions discharge.  On 11 July 2006, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of an 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.  It states that an honorable discharge is a separation with honor, and is appropriate when the quality of the Soldier’s service is so meritorious that any other characterization would be inappropriate.  Chapter 14 of this regulation 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 the entire applicant’s military records, and the issue and documents submitted with his application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  The analyst noted the applicant’s issue in that he correctly revealed that he was discharged after his ETS date and after his court martial charges had been dismissed.  Notwithstanding this issue, the analyst concluded that the rights of the applicant were not prejudiced by the error on file in this case.  Department of Defense Directive 1332.28 stipulates that a discharge is proper unless the error was a prejudicial error.  The record shows that applicant was pending charges by a court martial that were preferred on 6 January 2006.  He consulted with his defense counsel and offered to accept a Field Grade Article 15 and not demand trial by court martial, to provide truthful testimony to the prosecution of other soldiers, to testify truthfully in those and any related cases, and to cooperate with the government in any necessary trial preparation in such cases in exchange for the dismissal of the court martial charges.  The applicant as part of this agreement waived his right to an administrative separation board, to which he would otherwise be entitled if administratively separated under Chapter 14, AR 635-200, if administratively separated for the misconduct related to his case.  The convening authority agreed to dismiss the pending court martial charges, and to grant him testimony immunity in the cases he was to testify.  The charges were dismissed on 24 March 2006, the government fulfilled its part of the agreement.  However, the applicant had not yet completed his part of the said agreement as he was to testify against others that were pending court martial charges.  He continued to get his monthly pay despite that he had already reached his ETS.  The applicant’s separation proceedings were initiated on 1 May 2006, and he was separated on 3 August 2006.  The applicant had a record of serious misconduct and the evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made.  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 the misconduct, the applicant diminished the quality of his service below that meriting a general or a fully honorable discharge.  Furthermore, 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.  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: 22 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 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
X.  Board Action Directed					         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 AR20080005921
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