Applicant Name:  ?????

Application Receipt Date: 2009/01/14	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and attached 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: 080908
Discharge Received: 			   Date: 080923   Chapter: 14-5      AR: 635-200
Reason: Misconduct (Civil Conviction)	   RE:     SPD: JKB   Unit/Location: D Co, 1st Warrior Trans Bn, Fort Hood, TX  

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:  25
Current ENL Date: 060120    Current ENL Term: 6 Years  ?????
Current ENL Service: 	02 Yrs, 08Mos, 04Days ?????
Total Service:  		09 Yrs, 07Mos, 14Days ?????
Previous Discharges: 	RA-990210-010627/HD
                                       RA-010628-020816/HD
                                       RA-020817-060119/HD
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 19K3P M1 Armor Crewman   GT: 101   EDU: GED   Overseas: Korea/Southwest Asia   Combat: Kuwait (020401-021101)/Iraq (030107-030824) and Iraq (051212-061123)
Decorations/Awards: BSM, PH, ARCOM-W/"V" DEV, AAM-2, AGCM-2, NDSM, AFEM, ICM-W/CS, GWOTEM, GWOTSM, KDSM, NCOPDR-2, ASR, OSR-2, CAB, JMUA, MUA, PUC, VUA 

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 5 September 2008, 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- civil conviction for being convicted by the Bell County District Court of Belton, Texas for criminal mischief, theft of service, driving while intoxicated x 2, making terroristic threats x 2; the applicant was sentenced to one (1) year in the Bell County Jail, with an under other than honorable conditions discharge.  He was advised of his rights.  The applicant waived legal counsel, was advised of the impact of the discharge action, voluntarily 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 18 September 2008, the separation authority approved the unconditional waiver 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 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 he submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  The analyst noted that the applicant was discharged by reason misconduct- civil conviction and because of his civil 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.  Furthermore, the analyst noted the applicant's issue stating that he should have been medically retired from the military with an honorable discharge instead of misconduct; however, the evidence of record shows that the applicant was discharged under the provisions of Chapter 14, Paragraph 14-5, AR 635-200, by reason of misconduct-conviction by a civil court.  Additionally, the analyst acknowledges the independent document (Department of Veterans Affairs) submitted with the application indicating that the applicant was diagnosed with post traumatic stress disorder (PTSD) and was granted a 70% disability rating; however, the analyst determined that the applicant's discharge was not due to the result of any medical condition, but due to his civil conviction.  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: 28 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 characterization of service is too harsh, and as a result it is inequitable.  The Board determined that the overall length and quality of the applicant’s service, to include his combat service (i.e.,3 combat tours), mitigated the discrediting entries in his service record.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  This action entails a restoration of grade to SSG/E-6.  

Additionally, by the applicant, by his misconduct diminished the quality of his service below that meriting a fully honorable discharge.  However, the analyst determined that the reason for discharge was fully supported by the record and therefore, remains both proper and equitable.  
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
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: SSG/E-6
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090016021
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