Applicant Name:  ?????

Application Receipt Date: 2009/04/02	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and supporting 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: 081015
Discharge Received: 			   Date: 090121   Chapter: 14, SEC II       AR: 635-200
Reason: Misconduct (Civil Conviction)	   RE:     SPD: JKB   Unit/Location: U Company, 262nd Quartermaster BN, 23rd Quartermaster BDE, Fort Lee, VA 

Time Lost: Civil confinement for 199 days (20071019-20080508).  

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

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  28
Current ENL Date: 060928    Current ENL Term: 6 Years  ?????
Current ENL Service: 	02 Yrs, 03Mos, 24Days ?????
Total Service:  		10 Yrs, 01Mos, 11Days ?????
Previous Discharges: 	USAR-980115-000619/HD
                                       RA-000620-020411/HD
                                       RA-020412-060927/HD
Highest Grade: E5		Performance Ratings Available: Yes    No 
MOS: 92F14 H7/Petroleum Supply SP   GT: 116   EDU: HS   Overseas: Kuwait, Afghanistan   Combat: Kuwait (981125-990520), Afghanistan (030129-030729)
Decorations/Awards: AAM (2), AGCM (3), NDSM, ACM, GWOTSM, ASR, US Army Basic Recruiter BDG-Silver w/2 Gold ACH Stars, Driver and Mechanic BDG

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 10 December 2008, the applicant was convicted in the General District Court of Petersburg, State of Virginia, for arrest for Attempted Murder, 1st Degree, Abduction by Force/Intimidation, Robbery, Attempt to Kill/Murder and Malicious Wounding of a civilian on 08 October 2007; incarceration without bond until 09 May 2008; Nolle Prosequi (no-lay pro-say-kwee) "we shall no longer prosecute" all of the charges except for the Malicious Wounding, which was amended to Assault and Battery; found guilty of misdemeanor assault and battery and sentenced to time served (12 months, 1 month suspended), 6 months probation and paid $71.00 in fines.  On 15 October 2008, the commander notified the applicant of initiation of separation action under the provisions of Chapter l4,  paragraph 14-5, AR 635-200, by reason of misconduct-conviction by a civil court, with an under other than honorable conditions discharge.  He was advised of his rights.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with a under other than honorable conditions discharge. 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. On 20 November 2008, the applicant was notified to appear before an Administrative Separation Board.  On 18 December 2008, an Administrative Separation Board was conducted and recommended that the applicant be separated from the Army with an under other than honorable conditions discharge.  On 13 January 2009, the separation authority approved the findings and recommendations of the Administrative Separation Board,  waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of under  other than honorable conditions.The applicant was to be reduced to the grade of Private (E-1).  

       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 and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.    There was a full consideration of all faithful and honorable service as well as the infractions of discipline, the extent thereof, and the seriousness of the offenses.  The analyst determined that the applicant’s discharge was appropriate because the quality of 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 the former Soldier’s 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 appplicant's issue and 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.   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: 16 November 2009         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: No

Witnesses/Observers: No




 

Exhibits Submitted: The applicant submitted numerous documents (28 items) in support of his Personal Appearance hearing.
 

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable, 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 AR20090006495
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