Applicant Name:  

Application Receipt Date: 2008/05/21	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: 050303
Discharge Received: 			   Date: 050513   Chapter: 4-2b and 4-2A(1)    AR: 600-8-24
Reason: Unacceptable Conduct	   RE:     SPD: BNC   Unit/Location: HHB, 1-7 ADA Bn (Patriot), Fort Bliss, Texas 

Time Lost: None

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:  23
Current Entry Date: 030709    Current ENL Term: 4 Years  ?????
Current Term Service: 	01 Yrs, 10Mos, 05Days ?????
Total Service:  		04 Yrs, 14Mos, 05Days Includes Inactive Service
Previous Discharges: 	USAR 990826-010530/NA
                                       ARNG 010531-030824/HD
Highest Grade: O-2		Performance Ratings Available: Yes    No 
MOS: 14E 5P Patriot Missile/ADA   GT: 120   EDU: COLL GRAD   Overseas: None   Combat: None
Decorations/Awards: AAM, NDSM, GWOTSM, ASR, PB

V.  Post-Discharge Activity
City, State:  Dayton, OH
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 19 January 2005, the applicant was notified of initiation of elimination proceedings under the provisions of Chapter 4, AR 600-8-24, by reason of misconduct, moral or professional dereliction and derogatory information based on a GOMOR (041201) for having engaged in inappropriate physical contact with five junior enlisted female soldiers in his battery.  He twisted the arm of a pregnant soldier until it hurt her and, on another occasion, pushed the same soldier into a wall.  Additionally, he knocked another soldier to the ground, and pinned her down with his body while putting his forearm to her neck.  Additionally, he received a relief for cause OER under AR 623-105 for failing to perform his duties as a Tactical Control Officer.  The applicant was directed to show cause for his retention in the Army.  He was advised that he could submit a voluntary resignation in lieu of elimination or submit a rebuttal and request an appearance before a Board of Inquiry.  On 31 January 2005, the applicant consulted with legal counsel, and submitted his resignation in lieu of elimination action.  He waived his right to appear before a Board of Officers (BOI) contingent upon receiving a characterization of service not less favorable than general, under honorable conditions, and did not submit a statement in his own behalf.  The chain of command recommended separation with a general, under honorable conditions discharge.  The Department of the Army Ad Hoc Review Board recommended that the applicant’s elimination be accepted with issuance of a general, under honorable conditions discharge.  On 28 April 2005, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Ad Hoc Review Board and directed that the applicant be discharged with a characterization of service of general, under honorable conditions.  
        
       The record contains a GOMOR dated 1 December 2004.

       b.  Legal Basis for Separation:  
Army Regulation 600-8-24 sets forth the basic authority for officer transfers and discharges.  Chapter 4 outlines the policy and procedure for eliminating an officer from the Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security.  AR 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of the entire applicant’s military records, the issues, and documents he submitted, the analyst determined that it was not sufficiently mitigating to warrant an upgrade of the discharge under review.  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 Army Officers.  By his misconduct, the applicant diminished the quality of his service below that meriting a fully honorable.  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.  The applicant states that he was not allowed to submit a statement of rebuttal, however, the notification memorandum dated 19 January 2005, specifically states in paragraph 4 that he is entitled to legal counsel and to prepare a statement indicating any pertinent facts or any rebuttal bearing on the question of his elimination, he chose not to submit a statement and conditionally waived his right to a Board of Inquiry contingent upon receiving a characterization of service not less favorable than general, under honorable conditions.  Furthermore, the applicant was discharged under the provisions of Chapter 4, Paragraph 4-2a and 4-2b, AR 600-8-24.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Unacceptable Conduct”, and the separation code is "BNC."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  Additionally, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  In view of the foregoing, the analyst determined that the reason for discharge and the characterization of 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: 2009/03/06         Location: Washington, D.C.

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 AR20080008136
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