Applicant Name:  ?????

Application Receipt Date: 2009/05/05	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: 080421
Discharge Received: 			   Date: 080917   Chapter: 4-2b    AR: 600-8-24
Reason: Unacceptable Conduct	   RE:     SPD: JNC   Unit/Location: C Btry, 1-56 ADA Bn, Fort Bliss, TX 

Time Lost: None

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

Courts-Martial (Charges/Dates/Punishment): 071119, General Court Martial, for disobeying a lawful order not to have contact with his wife (061107), destruction of government property (060527), assault consummated by battery by intentionally inflicting bodily harm upon his wife (061107). Confinement for 90 days, forfeiture of $2,491 per month for three months, and to be reprimanded.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  29
Current ENL Date: 020509    Current ENL Term: INDEF Years  ?????
Current ENL Service: 	06 Yrs, 04Mos, 09Days ?????
Total Service:  		13 Yrs, 01Mos, 02Days ?????
Previous Discharges: 	RA 951011-020508/HD
Highest Grade: O-3		Performance Ratings Available: Yes    No 
MOS: 14B/ADA   GT: NA   EDU: COLL GRAD   Overseas: Germany, SWA   Combat: Kuwait/Iraq (030104-030729)
Decorations/Awards: ARCOM-3, AAM, USAFPUC, ASUA, AGCM-2, NDSM, GWOTSM, ICM

V.  Post-Discharge Activity
City, State:  El Paso, TX
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 28 December 2007, the applicant was notified of initiation of elimination proceedings under the provisions of Chapter 4, paragraphs 4-2b (3), (5), (8), and 4-2c (2), AR 600-8-24, by reason of mismanagement of his personal affairs to the discredit of the U.S. Army and for his conviction by a Court Martial for violating various provisions of the Uniform Code of Military Justice.  
       
       The commander indicated that this action was specifically being initiated for violations of a no contact order (060920), destruction of government property (070527), arrest and conviction of assault consummated by battery and failure to obey lawful orders (071107).  The applicant was directed to show cause for retention in the Army.  He was advised that he could submit a voluntary resignation in lieu of elimination or submit a rebuttal and request an appearance before a Board of Inquiry.  
       
       On 19 March 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by a Board of Inquiry 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.  
       
       On 21 April 2008, the applicant’s commanding general recommended disapproval of the conditional resignation due to the seriousness of the offenses and recommended an under other than honorable conditions discharge.  
       
       On 8 May 2008, the Ad Hoc Review Board recommended that the applicant’s conditional resignation not be accepted.  On 9 May 2008, the Deputy Assistant Secretary (Army Review Boards) did not accept the applicant’s conditional resignation and returned the case to the Army commander for action as he deemed appropriate. 
       
       On 27 August 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived consideration of his case by a Board of Inquiry, and acknowledged that if this resignation was to be accepted, he would be furnished a honorable, general or an under other than honorable conditions discharge, as determined by HQDA.  The applicant did not submit a statement in his own behalf.  
       
       On 2 September 2008, the Deputy Assistant Secretary (Army Review Boards) accepted the applicant’s unconditional resignation and directed that he be discharged from the United States Army with an under other than honorable conditions characterization of service.

       b.  Legal Basis for Separation:  
       Army Regulation 600-8-24 sets forth the basic authority for officer transfers and discharges.  Chapter 4 outlines the policy and procedure for eliminating an officer from the Army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security.  AR 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records, the issue, and documents he submitted, the analyst determined that the evidence was not sufficiently mitigating to warrant an upgrade of the discharge under review.  The applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by Army Officers.  By his misconduct, the applicant diminished the quality of his service below that meriting a fully honorable or general, under honorable conditions discharge.  The applicant provided no corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  
       
       The analyst acknowledges the applicant's successful transition to civilian life and noted the diagnosis of Deep Vein Thrombosis and PTSD outlined in the documents with his application.  However, in review of the applicant’s entire service record, the analyst found that these medical conditions did not overcome the reason for discharge and characterization of service granted, the applicant fully understood the difference between right and wrong when he committed the misconduct that caused his general court martial and the unit commander to initiate the separation action.  The medical document submitted by the applicant does not explain the “traumatic event” that took place in Iraq that may have caused his PTSD.  His official record does not support the issue that he suffered from Post Traumatic Stress Disorder at the time of his discharge.  
       
       The applicant contends that he was under the impression he would receive a general, under honorable conditions discharge; however, the record shows that on 27 August 2008, he unconditionally waived consideration of his case by a Board of Inquiry, and acknowledged that if this resignation was to be accepted, he would be furnished a honorable, general, under honorable, or an under other than honorable conditions discharge, as determined by HQDA.  
       Furthermore, the applicant requests that the reason for his discharge as listed in his DD Form 214 be changed from “Unacceptable Conduct” to “Miscellaneous”.  However, AR 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The narrative reason specified by this regulation is Unacceptable Conduct”, and the separation code is "JNC."  The regulation further stipulates that no deviation is authorized.
       
       Therefore, the analyst determined that the reason for discharge and the characterization of service remain both proper and equitable and recommends to the Board to deny relief.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 1 February 2010         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: Yes

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 AR20090008569
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