Applicant Name:  ?????

Application Receipt Date: 2008/08/28	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: 080401
Discharge Received: 			   Date: 080530   Chapter: 14       AR: 635-200
Reason: Misconduct, (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: HHC, 210th BSB, Fort Drum, NY  

Time Lost: None

Article 15s (Charges/Dates/Punishment): 070412, assault on another Soldier, reduction to E-1, extra duty for 45 days, (suspend 15 days of the extra duty), restriction for 45 days, (suspend 15 days of the restriction), and an oral reprimand (FG).

070117, disrespectful in language and deportment towards a SGT (061124), an oral reprimand (CG).

061110, assault on another Soldier (061029), disorderly, which conduct was of a nature to bring discredit upon the armed forces (061029), wrongfully communicate a threat to another Soldier to injure by inflicting bodily harm (061029), reduction to E-2 (suspended), forfeiture of $333 x 1 (suspended), extra duty for 14 days and restriction for 14 days,and an oral reprimand (CG). 

Courts-Martial (Charges/Dates/Punishment): 080130, SCM, without authority, go from his place of duty (071201), willfully damage military property of the U.S. Government (071201), resisted being apprehended by a DOD Policeman (071201), attempted to assault two DOD Policemen (071201), confinement for 30 days and a written reprimand.

071129, SCM, assault on a NCO, disobeyed a lawful order from a SGT (070924), disrespectful in language towards a SGT (070924), reduction to E-1, forfeiture of 2/3 pay x 1, hard labor without confinement for 45 days. 

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: 050719    Current ENL Term: 3 Years  19 Weeks
Current ENL Service: 	02 Yrs, 10Mos, 12Days ?????
Total Service:  		02 Yrs, 10Mos, 12Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 88M10 Motor Transport Operator   GT: 111   EDU: 13 Years   Overseas: Southwest Asia   Combat: Iraq (060812-071105)
Decorations/Awards: NDSM, ICM-1 BSS, GWOTSM, ASR, OSR

V.  Post-Discharge Activity
City, State:  Pensacola, FL
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 1 April 2008, the unit commander (COL, IN, Commanding) 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 found guilty by a Summary Court Martial for failure to report, willfully damaged military property, resisted apprehension by a DOD Policeman, and assaulted two DOD Policemen (080130); found guilty by a Summary Court Martial for assault on a NCO, willfully disobeyed a lawful order from a NCO, and disrespectful in language towards a NCO (071129); received a Field Grade Article 15 for assault on another Soldier (070424); received a Company Grade Article 15 for being disrespectful in language and deportment towards a NCO (070117); received a Company Grade Article 15 for assault on another Soldier, disorderly conduct, and wrongfully communicating a threat (061110), 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, waived consideration of his case by an administrative separation board administrative separation board contingent upon him receiving a characterization of service no less favorable than general, under honorable conditions, 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 20 May 2008, the separation authority approved the conditional waiver request, waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under 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 during the period of enlistment under review, the issues and documents 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, however, the evidence of record shows that the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.   Further,  the analyst 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.  Finally, the record does not support the issue that the applicant suffers from Post Traumatic Stress Disorder and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition.  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.
       
       Also, the analyst noted the applicant's issue in reference to his rank that it was incorrect on the DD Form 214, however, this issue does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing DD Form 149 regarding this matter.  An application for that Board is enclosed.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 17 December 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
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: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080013559
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