Applicant Name:  ?????

Application Receipt Date: 2009/01/23	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: NIF
Discharge Received: 			   Date: 000731   Chapter: 14-5       AR: 635-200
Reason: Misconduct (Civil Conviction)	   RE:     SPD: JKB   Unit/Location: HHC, 3D Inf Div, Fort Stewart, GA 

Time Lost: Confinement civil authorities  (970305-000731), as a result of civil conviction.

Article 15s (Charges/Dates/Punishment): NIF

Courts-Martial (Charges/Dates/Punishment): NIF

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  31
Current ENL Date: 951231    Current ENL Term: 4 Years  Extention of service was at the request and for the convenience of the government.
Current ENL Service: 	01 Yrs, 02Mos, 03Days ?????
Total Service:  		14 Yrs, 08Mos, 18Days ?????
Previous Discharges: 	USAR-820616-820811/NA
                                       ADT-820812-821207/HD
                                       USAR-821208-920930/NA
                                       RA-921001-951230/HD
Highest Grade: E5		Performance Ratings Available: Yes    No 
MOS: 92Y10/Unit Supply Specialist   GT: 109   EDU: HS Grad   Overseas: Germany   Combat: None
Decorations/Awards: AGCM, ASR, AFRM, NDSM, OSR, NCOPDR

V.  Post-Discharge Activity
City, State:  Stone Mountain, GA
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The specific facts and circumstances pertaining to the applicant’s discharge from the Army are not contained in the available records.  However, Army Board for Correction of Military Records (ABCMR) Record of Proceedings dated 2 October 2008, makes reference to the applicant having been notified of separation by memorandum dated 20 June 2000, under the provisions of Chapter 14, paragraph 14-5, AR 635-200 by reason of conviction by civil court for misconduct based on conviction for aggravated assault with intent to rape.  The Record of Proceeding further references that the applicant was advised of his rights.  The applicant 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.  Inquiries made by the ABCMR official's show that the applicant was involved in an incident on 1 March 1997; arrested on 5 March 1997; charged with rape and aggravated assault with intent to rape; convicted on the charge of aggravated assault with intent to rape on 19 December 1997; and sentenced to 5 years confinement and 5 years probation; and motion to appeal was closed.  The recommendation by the applicant's chain of command and the separation authorities approval memorandum directing that the applicant be discharged with a characterization of service of general, under honorable conditions, is not contained in the available record and the analyst presumed government regularity in the discharge process.  The record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant.  The DD Form 214 indicates that the applicant was discharged under the provisions of Chapter 14, paragraph 14-5, AR 635-200, by reason of misconduct (civil conviction), with a characterization of service of general, under honorable conditions.  Furthermore, the DD Form 214 shows a Separation Code of JKB (i.e., misconduct-civil conviction).

       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 available military records during the period of enlistment under review, the documents, and the issues he submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  The applicant’s record is void of the specific facts and circumstances concerning the events that led to a discharge from the Army.  However, the applicant’s record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge and the analyst presumed government regularity in the discharge process.  The DD Form 214 indicates that the applicant was discharged under the provisions of Chapter 14, paragraph 14-5, AR 635-200, by reason of misconduct (civil conviction), with a characterization of service of general, under honorable conditions.  Barring evidence to the contrary, 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.  
       
       Furthermore, the analyst noted the applicant's issues; however, Chapter 14, paragraph 14-5a and (2) state; A Soldier may be considered for discharge when initially convicted by civil authoritiees, or when action is taken that is tantamount to a finding of guilty, if one of the following conditions is present.  This includes similar adjudication in juvenile proceedings: the sentence by civil authorities includes confinement for 6 months or more, without reguard to suspension or probation.  Adjudication in juvenile proceedings includes adjudication as a juvenile delinquent, wayward minor, or youthful offender.  Available records show that the applicant was sentenced to 5 years confinement and 5 years probation.
       
       Further, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “3.”  If reenlistment is desired, the applicant should contact the local recruiter to determine 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 if appropriate.
       
       Additionally, the analyst determined that the applicant’s Official Military Personnel File (OMPF) does not contain all the specific documents that would indicate the reason for the separation action from the United States Army.  If the applicant desires to appear before a personal appearance Board, the burden of proof remains with the applicant to provide the appropriate documents or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration.  In view of the foregoing, the analyst determined the reason for  discharge and the characterization of service, to include the reentry eligibility (RE) code was both proper and equitable, and recommends to the Board to deny relief.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 17 February 2010         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: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090002298
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