Applicant Name:  ?????

Application Receipt Date: 2008/10/17	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states that he received an Honorable Discharge after his first enlistment.

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: 080422
Discharge Received: 			   Date: 080516   Chapter: 14-12c     AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: B Co, 1-13th Avn Rgmt, Fort Rucker, AL 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 080408, the applicant did on or about 28 March 2006, at or near Camp Shelby, MS, knowingly possess a Toshiba hard drive, on a Dell laptop computer, which contained photographic images and video files of child pornography which were transported in interstate commerce; reduction to Private (E-2), forfeiture of $751.00 pay per month for two months, 45 days extra duty, and 45 days restriction (FG).

Courts-Martial (Charges/Dates/Punishment): 080414, GCM, the applicant was charged with violation of Article 134, in that he did on or about 28 March 2006, at or near Camp Shelby, MS, knowingly possess a Toshiba hard drive, on a Dell laptop computer, which contained photographic images and video files of child pornography; the charges were dismissed for lack of jurisdiction. 

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  24
Current ENL Date: 051012    Current ENL Term: 2 Years  ?????
Current ENL Service: 	2 Yrs, 07Mos, 05Days ?????
Total Service:  		7 Yrs, 09Mos, 14Days ?????
Previous Discharges: 	RA 000803-031220/HD
                               USACG 031221-040513/NA
                                  ARNG 040514-051011/NA 
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 63M10/Bradley Fighting Vehicle Systems Maintainer   GT: 89   EDU: HS GRAD   Overseas: NIF   Combat: Ordered to Active Duty ISO OIF (unknown if deployed)
Decorations/Awards: NDSM, GWOTSM, ASR, AFRM W/M Device

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





VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 22 April 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct—for  knowingly possessing a Toshiba hard drive, on a Dell laptop computer, which contained photographic images and video files of child pornography, 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, unconditionally waived his right to 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.  On 9 May 2008, 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 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 all the applicant’s military records, and the issue submitted with the application, 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 the former Soldier’s 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 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.  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: 7 August 2009         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: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080016138
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