Applicant Name:  ?????

Application Receipt Date: 2008/11/19	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, "I was discharged for a misconduct, (serious offense).  Sexual assualt was what I was accused of.  I never commited such act.  Civil authorities did not not persue action beause it is not true, although the Army decided to board and discharge me out.  There was a total of four military individuals including myself that were involved in this case.  Two Navy recruiters and another Army recruiter.  I lost a rank and was discharged from the Army which I love and would do anything to go back in if I could.  The other military individuals did not lose rank, nor did they get discharged.  I feel this is very unfair and an injustice.  I could not afford an attorney to help me with this case.  With the discharge that was given to me it is hard to get employed.  Again, I feel this is an injustice.  I did not commit such crime!  There was a sworn and written statement that was not provided on this board  because the civil authorities did not want to release it.  The board did not have all its information when decided to make this decision.  I feel my discharge should be upgraded to Honorable, I did not commit this crime I was accused of."

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: 060613
Discharge Received: 			   Date: 061215   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: U.S. Army Recruiting Bn, San Antonio, TX 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 060523, on diverse occasions (050901-051031), have an unauthorized relationship with an applicant; reduction to E-4, forfeiture of $1009 x 1 (suspended), (FG).

050207, without authority left his place of duty (040930), and failure to report (041001); reduction to E-5, forfeiture of $1164 x 2 ( one month suspended), (FG). 

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  29
Current ENL Date: 030402    Current ENL Term: 6 Years  ?????
Current ENL Service: 	03 Yrs, 08Mos, 14Days ?????
Total Service:  		09 Yrs, 11Mos, 00Days ?????
Previous Discharges: 	RA-970116-010308/HD
                                       RA-010309-030401/HD
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 44C1L Financial Management Tech   GT: 113   EDU: 14 Years   Overseas: Germany/Kosovo   Combat: None
Decorations/Awards: ARCOM-3, AAM, AGCM-3, NDSM, KCM, GWOTSM, NCOPDR-2, ASR, OSR, NM (Kosovo) 

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 13 June 2006, 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-commission of a serious offense for sexual assault on a female and making a false report to law enforcement, 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, requested 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 and senior intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.  On 31 August 2006, the applicant was notified to appear before an administrative separation board and advised of his rights.  On 7 November 2006, the administrative separation board convened.  The applicant appeared with counsel.  However, the findings and recommendation of the board are not part of the available record and the analyst presumed Government regularity in the discharge process.  On 5 December 2006, the separation authority approved the findings and recommendation of the Board, waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions.
       
       The applicant's record contains three CID Reports of Investigation dated 30 May 2006, 25 May 2006, and 1 March 2006.  
       
       The applicant's record contains a General Officer Memorandum of Reprimand dated 31 January 2006, for misconduct (Administrative). 
       
       The applicant's record contains an Air Force Report of Investigation dated 8 December 2004.
       
       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 and the issues 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, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “3.”  If the applicant desires to reenlist, he should contact the local recruiter to determine his eligibility to reenlist.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes.  Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  Finally,  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.   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: 3 September 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: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080018633
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