Applicant Name:  ?????

Application Receipt Date: 2008/11/18	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 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: 041022
Discharge Received: 			   Date: 041201   Chapter: 14-12b    AR: 635-200
Reason: Misconduct	   RE:     SPD: JKA   Unit/Location: C Troop, 4/7th Cav Regt, Camp Garry Owen, Republic of Korea, APO AP 96251 

Time Lost: None; however, the record indicates the Applicant was sentenced to 5 months of confinement on 031230.

Article 15s (Charges/Dates/Punishment): None

Courts-Martial (Charges/Dates/Punishment): Special Court-Martial, 031230, Cruelty toward a KATUSA Soldier (030905), cruelty toward PV2 H. (030905), unlawfully struck SPC G. in the head and stomach with his fist and kicked his body (030906), unlawfully struck PV2 U. in the back with his fist (030906), unlawfully struck PV2 G. in the upper back and stomach with his fist (030906), unlawfully struck SPC H. in the cheek with his elbow (030906), was drunk and disorderly (030906), wrongfully communicated a threat to PV2 G. (030906), wrongfully communicated a threat to SPC G. (030906), wrongfully communicated a threat to PV2 U. and PV2 G. (030906), wrongfully communicated a threat to PV2 G. x 2 (030906); Reprimanded, reduced to E4, confinement for 5 months.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  26
Current ENL Date: 020625    Current ENL Term: 06 Years  ?????
Current ENL Service: 	02 Yrs, 05 Mos, 07 Days ?????
Total Service:  		09 Yrs, 03 Mos, 08 Days ?????
Previous Discharges: 	RA   950824-980219/HD
                                       RA   980220-000615/HD
                                       RA   000624-020624/HD
Highest Grade: E5		Performance Ratings Available: Yes    No 
MOS: 19K  M1 Armor Crewman   GT: NIF   EDU: NIF   Overseas: Korea   Combat: None
Decorations/Awards: AAM (4), AGCM (3), NDSM, GWOTSM, KSM, NCOPDR, ASR

V.  Post-Discharge Activity
City, State:  San Antonio, TX
Post Service Accomplishments: None submitted by the Applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 20 October 2004, the unit commander notified the Applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of misconduct for  having been convicted at a court-martial for six counts of communicating a threat, five counts of assault, two counts of cruelty and maltreament, and one count of damage to non-military property and, having been released from confinement, showed no effort at rehabilitation, and failed to show any sign of improvement, having broken curfew and having been observed drunk on duty, with an under other than honorable conditions discharge.  The Applicant was advised of his rights, consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an 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.  On 10 November 2004, 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 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 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: 2 September 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: No Change										
RE Code: 
Grade Restoration:   No   Yes   Grade: No Change
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080018992
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