Applicant Name:  ?????

Application Receipt Date: 2009/03/24	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: 080811
Discharge Received: 			   Date: 081108   Chapter: 10     AR: 635-200
Reason: In Lieu of Trial by Court Martial	   RE:     SPD: KFS   Unit/Location: A Co, 602d AVB, Camp Humphreys, Korea  

Time Lost: None

Article 15s (Charges/Dates/Punishment): 080313, wrongfully being off post during curfew and attempt to conspire with two soldiers not to pay taxi services, reduction to E4, forfeiture of $1087 pay per month for two months, suspended if not vacated before 080909, 45 days extra duty and restriction and oral reprimand (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  25
Current ENL Date: 051020    Current ENL Term: 3 Years  18 weeks
Current ENL Service: 	3 Yrs, 00Mos, 19Days ?????
Total Service:  		8 Yrs, 01Mos, 06Days ?????
Previous Discharges: 	IADT 990804-000215/UNC
                                       USAR 031201-041110/HD
Highest Grade: E5		Performance Ratings Available: Yes    No 
MOS: 92W10/Water Treatment Sp   GT: NIF   EDU: GED   Overseas: Korea, SWA   Combat: Iraq (040212-041006) & Kuwait (040202-040211)
Decorations/Awards: ARCOM, AAM, AGCM, NDSM, GWOTSM, GWOTEM, KDSM, ICM, AFRM, ASR

V.  Post-Discharge Activity
City, State:  ?????
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 15 February 2008, the applicant was convicted by a foreign court, Seoul District Court for inflicting bodily injury and obstruction of performance of official duties of a Korean Police Officer. Further, he and another passenger attempted to exit a taxi without paying the fare of (82,000 Won).  The Korean police attempted to arrest the passenger and the applicant attempted to prevent a police officer from arresting the passenger by grabbing the police officer and holding his arms.  The Seoul District Court sentenced the applicant to a fine of 2,000,000 Won.   On 11 August 2008 , the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 9, AR 635-200, for Conviction by Foreign Tribunal, 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, unconditionally waived his right to an administrative separation board, and submitted 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 than honorable conditions discharge.  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.
       
       There is a GOMOR in the record for DUI on 9 February 2002.
       
       There are two MP Reports in the record; one for DUI and speeding on 9 February 2006 and another for obstruction of justice, failed to obey a general order and false official statement on 4 November 2007.
       
       Additionally in the record, is a Summary Order from the Republic of Korea identifying the applicant as guilty of inflicting bodily injury and obstruction of performance of official duties dated 12 February 2008.
       
       Further, the DD Form 214 indicated that the applicant received a Chapter 10 discharge, In Lieu of Trial by Court-Martial but there are no documents in the record indicating this action.  All documents indicate that the applicant was discharged under Chapter 14, paragraph 9, Conviction by Foreign Tribunal with an under other than honorable conditions discharge. It is believed that someone in the transition office erroneously prepared the DD Form 214 in advance of the separation authority's approval. 
       

       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.  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 determined that even though a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The analyst having examined all the circumstances determined that the applicant's single incident of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline.  This single incident of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge. 
       Further, the analyst noted administrative errors on the DD Form 214, and determined that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 25, separation authority as AR 635-200, paragraph 10, block 26 separation code  as "KFS" , and block 28, narrative reason for separation as “In Lieu of Trial by Court Martial.”  In view of the foregoing, the analyst recommends to the Board that administrative changes be made to block 25, to indicate separation authority as AR 635-200, Chapter 14, paragraph 9,  block 26, separation code as "JKB," block 27 Reentry Code to RE3 and block 28, reason for separation as “Conviction by Foreign Tribunal,”which was approved by the separation authority.  Except for the foregoing modifications, as stated above, the analyst determined that the discharge was both proper and equitable.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 16 November 2009         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: Yes

Witnesses/Observers: Yes 

Exhibits Submitted: 13 pages of Psychiatric Consult (VA Hospital), 2 pages of Anger Management Classes, 3 pages of Deny Benefits from VA Hospital, 10 pages of Applicant Statement from Korea, 4 pages of Psychiatric visit, (121th General Hospital), 1 page from Social Worker (VA Hospital), 2 pages of Enlisted Record Brief (081019 and 090317), 2 pages of Duty Roster and 1 page Indictment in the case of Barber.

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 characterization of service was too harsh based on the applicant’s length and quality of his service to include his combat service  surrounding his misconduct and as a result, it is inequitable.  Accordingly, the Board voted to grant relief by changing the characterization of service to general, under honorable conditions.  Further, the Board directs administrative changes be made to block 25, to indicate separation authority as AR 635-200, Chapter 14, paragraph 9;  block 26, separation code as "JKB"; block 27, Reentry Code to RE3; and block 28, reason for separation as “Conviction by Foreign Tribunal".
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
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: Conviction by Foreign Tribunal
Other: Change block 25 separation authority to AR 635-200, Chapter 14, para 9 and block  26 separation code to JKB										
RE Code: 
Grade Restoration:   No   Yes   Grade: E4
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090007004
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