Applicant Name:  ?????

Application Receipt Date: 2009/09/15	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See enclosed DD From 293 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: 010314
Discharge Received: 			   Date: 010430   Chapter: 14-12c       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKQ   Unit/Location: HQ OPS Co, 743d MI Bn, Fort MD  

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:  31
Current ENL Date: 981104    Current ENL Term: Indefinite Years  ?????
Current ENL Service: 	02 Yrs, 05Mos, 27Days ?????
Total Service:  		14 Yrs, 07Mos, 22Days ?????
Previous Discharges: 	RA-860909-900125/HD
                                       RA-900126-941226/HD
                                       RA-941227-960806/HD
                                       RA-960807-981103/HD
Highest Grade: E6		Performance Ratings Available: Yes    No 
MOS: 33W10/Elect Warfare Maintance Repair Tech   GT: 104   EDU: HS Grad   Overseas: Bosnia-2, Germany   Combat: None
Decorations/Awards: JSCM, ARCM-2, AAM-8, AGCM-4, NDSM, AFEM, NCOPDR-2, ASR, OSR-2, AFSM, NATOMDL

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       Evidence of record shows that on 14 March 2001, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 12c, AR 635-200, by reason of misconduct—commission of a serious offense for between 1 August 2000 and 20 August 2000, the applicant committed sodomy and carnal knowledge with a child under the age of 16; took indecent acts and liberties with a child under the age of 16; and under USC 2252 (A) 57 (B) the applicant possess child pornography, 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, however, records show that the applicant refused to sign the election of rights document.  The unit commander subsequently recommended separation from the service 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 20 April 2001, 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 dated 2 February 2001.

       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, but a general discharge 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 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, however, even though a isolated incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by an isolated incident provides the basis for a characterization.  The analyst having examined all the circumstances determined that the applicant's isolated incident of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline.  This isolated incident of misconduct clearly diminished the quality of the applicant's service below that meriting a general, under honorable conditions discharge.  Further, regarding the applicant's issue that he was not afforded due process under UCMJ because he did not attend a board or disciplinary hearing, this is not correct.  Per Chapter 2 Paragraph 2-4b(7), AR 635-200, the applicant's failure to respond in writing within seven (7) duty days consituted a waiver of his right to an administrative separation board.  Additionally, the applicant's available record does not support the issue that the applicant suffers from Post Traumatic Stress Disorder or Bipolar 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 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: 30 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: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090016090
______________________________________________________________________________


Page 1 of 3 pages