Applicant Name:  ?????

Application Receipt Date: 2009/07/28	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states:  "Because I got kicked out for something I never did. My ex-wife said I physically abused her which is not true. I never put my hands on her and I got an explanation from my ex-wife that she lied. This explanation  is notarized."  He further states in effect that he wants to rejoin the Army and have a second chance.

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: 070514
Discharge Received: 			   Date: 070525   Chapter: 14-12b    AR: 635-200
Reason: Pattern of Misconduct	   RE:     SPD: JKA   Unit/Location: HHC, 54th EN Bn, Bamberg, GE 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 060701, with intent to deceive provided a false statement (051006), unlawfully strike Mrs. T on the side of the head with a closed fist and pushed her to the ground (051006), reduction to E-3, 45 days of extra duty and a verbal reprimand (FG)

070416, unlawfully assaulted his wife four times (070309), reduction to E-1, forfeiture of $650 for two months (suspended), 45 days of extra duty and restriction (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 060120    Current ENL Term: 6 Years  ?????
Current ENL Service: 	01 Yrs, 04Mos, 05Days ?????
Total Service:  		03 Yrs, 03Mos, 08Days ?????
Previous Discharges: 	RA 040218-050519/HD
                                       RA 050520-060119/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 63H10/Track Vehicle Mechanic   GT: 97   EDU: HS Grad   Overseas: Germany, SWA   Combat: Iraq (051101-061025)
Decorations/Awards: NDSM, GWOTSM, ICM, ASR, OSR-2, CAB

V.  Post-Discharge Activity
City, State:  Bamberg, GE
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 14 May 2007, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern misconduct—for receiving multiple Articles 15 for domestic assault, for lying to military personnel about those actions, and for conducting himself in a way that brought discredit upon the military, with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 15 May 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge.
        
       On 21 May 2007, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under 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 and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  
       
       The analyst determined that 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 military personnel.  By the repeated incidents of misconduct, the applicant diminished the quality of his 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.  He provided several character reference letters as well as a notarized statement from his ex-wife in which she states that it was all a “misunderstanding,” that there was no use of force, and that the Military Police report of 9 March 2007 was incorrect.  The analyst carefully considered the applicant's character reference letters and his ex-wife's statement in which she claims it was all a misunderstanding.  However, the record shows the applicant's service was marred by two Articles 15 which were over ten months apart for the same type of misconduct.  Further, the applicant’s record does not contain the military police report that would provide the specific facts and circumstances related to the domestic abuse he inflicted upon his wife that eventually led to his discharge from the Army.  However, the applicant’s record does contain the unit commander’s statement and two Articles 15 which were signed by the applicant when he was read the charges and when he accepted his punishment.  He had the opportunity to seek legal advice and explain his case.  The unit commander’s notification of elimination proceedings identifies the reason and recommended characterization of the discharge and the analyst presumed government regularity in the discharge process.  
       
       The applicant also requests that the reason for his discharge be changed.  However, the applicant was discharged under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct, with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct” and the separation code is "JKA."  Army Regulation 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 and separation code, entered in block 26 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.  There is no provision for any other reason to be entered under this regulation.  
       
       Additionally, the applicant wants a second chance and would like to rejoin the Army.  The record shows, that at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “3.”  If he wants to reenlist, he should contact the local recruiter to determine his 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.  
       
       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: 26 July 2010         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: Notarized statement from his ex-wife (090615), three character reference letters, copy of VA Claim (080305), four copies of certificates of training, oath of reenlistment, certificate of achievement, honorable discharge certificate, and separation and other related documents..

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









Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 

ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090012794
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