Applicant Name:  ?????

Application Receipt Date: 2009/03/13	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: 080327
Discharge Received: 			   Date: 080710   Chapter: 14-12c     AR: 635-200
Reason: Misconduct, Serious Offense	   RE:     SPD: JKQ   Unit/Location: 40th Transportation Company, 129th CSSB, Ft Lewis, WA 

Time Lost: None

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

Courts-Martial (Charges/Dates/Punishment): 080228 Summary Court Martial (070831) wrongfully committed an indecent act with a woman (PFC) not his wife by engaging in sexual acts in the presence of two other Soldiers;  on (070831) wrongfully having sexual intercourse wth a woman not his wife;  on or between (060925-070301) commit an indecent assault upon a woman (SPC) to gratify his sexual desires; on or between (070831) violated a lawful order not to consume alcohol in the MNC-I AOR; and on or about (070831) fail to obey a lawful order by wrongfully having a female in his room; reduced to E1, confinement for 45 days; all other punishment (illegible). 

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  25
Current ENL Date: 061121    Current ENL Term: 4 Years  17 weeks
Current ENL Service: 	4 Yrs, 01Mos, 03Days Moral waiver for 12 minor traffic violations
Total Service:  		4 Yrs, 01Mos, 03Days ?????
Previous Discharges: 	RA 040608-061120/HD (Continous service)
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 88M10/Motor Transport Operator   GT: 115   EDU: GED   Overseas: SWA   Combat: Iraq x2 (050106-060106 & 070325-080515)
Decorations/Awards: ARCOM, AAM, AGCM, NDSM, GWOTSM, ASR, ICM w/2BSS, OSB x4

V.  Post-Discharge Activity
City, State:  Puyallup, WA
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 27 March 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 12c, AR 635-200, by reason of misconduct commission of a serious offense in that on 070831 he had sexual intercourse with a woman (PFC) not his wife in the presence of two other Soldiers in doing so committed indecent act.  On the same occasion, violated a lawful general order issued by the Commander MNC-I not to consume alcohol in the MNC-I AOR, violated a written order  by wrongfully being in a containerized housing unit with a female on or between (060925-070301), and also committed an indecent assault on a woman (SPC) not his wife, 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, 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 an under other honorable conditions discharge.  On 10 April 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.  Furthermore, the analyst noted the applicant's issue and 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.  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: 4 December 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: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090006642
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