Applicant Name:  ?????

Application Receipt Date: 2009/08/27	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states: "1.  I wish to rejoin another branch of military or government agency.  2.  The civil conviction I got was not malicious or violent and I want to try to rebuild my life and move past my mistakes."

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: 070320   Chapter: 14-5       AR: 635-200
Reason: Misconduct (Civil Conviction)	   RE:     SPD: JKB   Unit/Location: C Co, 447th Sig Bde, Fort Gordon, GA 

Time Lost: Confinement civil authority for 236 days (060131-060923) as a result of civil conviction (060614).

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: 050726    Current ENL Term: 04 Years  ?????
Current ENL Service: 	01 Yrs, 00Mos, 02Days ?????
Total Service:  		01 Yrs, 00Mos, 13Days ?????
Previous Discharges: 	USAR-050715-050725/NA
Highest Grade: E1		Performance Ratings Available: Yes    No 
MOS: None   GT: 102   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: None

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-5, AR 635-200, by reason of misconduct—conviction by civil court, for lewd acts upon a child and oral copulation with a minor, with an under other than honorable conditions discharge.  
       
       The applicant's election of rights is not contained in the available record, however, memorandum dated 1 March 2007, from the Staff Judge Advocate, Fort Gordon, GA, makes reference to the applicant who had a right to have his case heard by an administrative separation board, on 2 November 2006, he conditionally waived his right provided that he receive a discharge no less favorable than general, under honorable conditions.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  
       
       The intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.  
       
       On 28 February 2007, the applicant again consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived consideration of his case by an administrative separation board, and did not submit a statement in his own behalf.  
       
       On 2 March 2007, the separation authority disapproved the applicant's initial conditional waiver (2 November 2006) and appointed an administrative separation board  to consider and recommend whether the applicant should be discharged from the Army, and if so, whether the characterization of the discharge should be honorable, general, under honorable conditions, or under other than honorable conditions.  
       
       On 6 March 2007, the separation authority approved the unconditional waiver (28 February 2007) request, waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of under other than 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 during the period of enlistment under review, the issues and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  Because of the civil court conviction, the applicant diminished the quality of his service below that meriting a fully honorable 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.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.  
       
       Furthermore, the analyst noted the applicant's issue reference rejoining another branch of the military or government agency.  At the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “3.”  If reenlistment is desired, the applicant should contact the local recruiter to determine 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.  
       
       Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.
       
       In view of the foregoing, the analyst determined that the characterization of service and reason for discharge 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 July 2010         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: 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 AR20090015072
______________________________________________________________________________


Page 1 of 3 pages