Applicant Name:  ?????

Application Receipt Date: 2009/08/05	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states in effect:  "I was convicted by a civilian court on a misdemeanor charge. I had no infractions in the National Guard during my time of service. The misdemeanor charge was taken care of."

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: NIF
Discharge Received: 			   Date: 080609   Chapter: 8-35i(2)    AR: NGR 600-200
Reason: Conviction by Criminal Court	   RE:     SPD: NA   Unit/Location: HHC, 206th EN Bn, Owensboro, KY 

Time Lost: None

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

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 060811    Current ENL Term: 8 Years  ?????
Current ENL Service: 	01 Yrs, 09Mos, 29Days ?????
Total Service:  		01 Yrs, 09Mos, 29Days ?????
Previous Discharges: 	IADT 070320-080804/UNC (Concurrent Service)
Highest Grade: E-2		Performance Ratings Available: Yes    No 
MOS: 63B10/Wheel Vehicle Mechanic   GT: NIF   EDU: GED   Overseas: None   Combat: None
Decorations/Awards: NDSM, ASR

V.  Post-Discharge Activity
City, State:  Henderson, KY
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence shows the applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army National Guard of the State Kentucky.  The evidence indicates that on 9 June 2008, HQ, Military Affairs Department, Boone National Guard Center, Frankfort, KY, Orders 161-801, discharged the applicant from the Army National Guard and as a Reserve of the Army, effective date 9 June 2008, with an under other than other conditions discharge.  
       
       The record does contain a properly constituted NGB Form 22 (Report of Separation and Record of Service).  It indicates that the applicant was discharged under the provisions of paragraph 8-35i(2), NGR 600-200, by reason of conviction by criminal court, with a characterization of service of under other than other conditions, and a reenlistment eligibility (RE) code of "3."  The applicant was to be reduced to the lowest enlisted rank.

       b.  Legal Basis for Separation:  
National Guard Regulation (NGR) 600-200 and Army Regulation 135-78 govern procedures covering enlisted personnel management of the Army National Guard.  Chapter 8 of NGR 600-200 covers, in pertinent part, reasons for discharge and separation of enlisted personnel from the State Army Reserve National Guard.  Paragraph        8-35i(2), of that regulation provides in pertinent part that individuals can be separated for a civil conviction by a criminal court.

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s available military records for the period of enlistment under review, the issue and documents he submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  
       
       The applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the State of Kentucky Army National Guard and as a Reserve of the Army.  However, the record does contain a properly constituted NGB Form 22 (Report of Separation and Record of Service), which indicates that the applicant was unavailable for signature.  This document identifies the reason and characterization of his service and the analyst presumed government regularity in the discharge process.  The NGB Form 22 shows the applicant was discharged under the provisions of Chapter 8, paragraph 8-35i(2), NGR 600-200, by reason of conviction by a criminal court with a characterization of service of under other than honorable conditions.  Barring evidence to the contrary, the analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       The analyst noted and carefully  considered the applicant’s contention that he was convicted of a misdemeanor by a civil court but committed no infractions in his unit.  However, the analyst is unable to determine whether his contentions have merit because the facts and circumstances leading to the discharge are unknown.  The burden of proof remains with the former Soldier to provide the appropriate documents or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.  If the applicant desires a personal appearance hearing, it will still be his responsibility to meet the burden of proof since the evidence is not available in the official record.  Additionally, NGR 600-200 stipulates that Soldiers convicted by a criminal court will be processed for separation from the ARNG and as a Reserve of the Army.
       
       Therefore, based on the available evidence, the analyst presumes government regularity in the discharge process and concludes that it appears 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: 2 June 2010         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 214 and NGB Gorm 22.










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 AR20090013386
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