Applicant Name:  ?????

Application Receipt Date: 2009/08/03	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, "I served my time and was discharged out without explanation.  I should have been given a general discharge.  I am getting treatment for Post Traumatic Stress Disorder."

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: 041124
Discharge Received: 			   Date: 050624   Chapter: 14-12b       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKA   Unit/Location: B Fwd Spt Co, 215th FSB, APO AE 09738 

Time Lost: It appears that the applicant was AWOL for 21 days (05329-050418).  The administrative separation board proceedings refer to an alleged AWOL, and the DD Form 214 block 29, dates of time lost during this period shows a period of lost time. 

Article 15s (Charges/Dates/Punishment): 040512, disobeyed a lawful command from a 1LT (040405), dereliction of duty (040405), disobeyed a lawful order from a SGT (040405), and assault upon a SGT (040405); however, it appears that the Article 15 was not executed.

Courts-Martial (Charges/Dates/Punishment): 041025, SCM, indecent assault x 2, disobeyed an order from a Commissioned Officer, and assault upon a NCO, and dereliction of duty; reduction to E-1.  The actual court-martial documentation is not part of the available record, see notification memorandum.   

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  25
Current ENL Date: 020528    Current ENL Term: 3 Years  Retained in service 6 days for the convenience of the Government per 10 USC 12305. 
Current ENL Service: 	03 Yrs, 00Mos, 06Days ?????
Total Service:  		03 Yrs, 00Mos, 06Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 92G10 Food Service Spec   GT: NIF   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq (040315-041222)
Decorations/Awards: NDSM, GWOTEM, GWOTSM, ASR

V.  Post-Discharge Activity
City, State:  Martinsburg, WV
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation
       a.  Facts and Circumstances:
       The evidence of record shows that on 24 November 2004, 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 misconduct-pattern of misconduct for conviction by Summary Court-Martial of indecent assault x 2, disobeying an order from a Commissioned Officer, assaulting a NCO, and dereliction of duty, 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 consideration of his case by 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 and senior intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.  On 8 March 2005, again the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board 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 29 April 2005, the applicant was notified to appear before an administrative separation board and advised of his rights.  On 19 May 2005, the administrative separation board convened.  The applicant appeared with counsel.  The board recommended that the applicant be discharged with issuance of a characterization of service of under other than honorable conditions.  On 13 June 2005, 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.
       
       The applicant's record contains a CID Report of Investigation dated 5 July 2004.

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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 during the period of enlistment under review, and the issues and document he submitted, 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 his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  By his misconduct, the applicant diminished the quality of his service below that meriting a general, under honorable conditions 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 issues in reference to being treated for Post Traumatic Stress Disorder (PTSD); however, the record does not support the issue that the applicant suffers from Post Traumatic Stress Disorder and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition.  In view of the foregoing, 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 October 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: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090013178
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