Applicant Name:  ?????

Application Receipt Date: 2009/11/30	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states:  I was arrested for solicitation in El Paso, TX. The District Attorney after reviewing the case, dismissed the charge. My unit was only informed about the charge and not the prosecutor's decision to dismiss the charge. I had a severe medical condition at the time and was in the process of seperating under a Medical Review Board.My unit commander stopped my Medical Review Board and halted any further meetings with them to seperate me Honorably under MRB.I requested under my rights to a Seperation Board.I was entitled to that under regulation. I was also advised by my military lawyers to request a seperation Board to review my case. The government came back with threats of an Other than Honorable Discharge if I did not waive my right to the seperation Board. After meeting with my lawyers they advised me that I still had the right to a Board under AR 635-200 and that the General Court -martial Convening Authority would pick what type of discharge I receive. My legal team responded to the government with the regulation and a waiver to my right to a hearing at the board. The Government still responded that they would Court Martial me if I did not accept my General Discharge and waive any other rights. My lawyers advised me to accept the General Discharge and waive my right to a board and pursue outside the military for my rights to an Honorable Discharge. I believe my discharge was unjustified for pattern of misconduct. I was in no other legal troubles at the time of incident and was working on seperating anyways from the Army under the medical board. There was no need to stop my Medical Board proceedings and let me out of the service Honorably. I believe a few individuals in my chain of command had a personal vendetta against me. I served for almost twelve years in the military. I have lost many days, months, years away from my family due to field training exercises, deployments, or foreign service. I feel the military chain of command in my last unit had no right to judge me before my case was heard in a public courtroom. I was guilty by the chain of command prior to even seeing a judge. This injustice should not have occured and I hope it will not occur to any other member who proudly wears a uniform and serves his/her country. I hope that the Army Review Board panel finds it also an injustice and I am begging that my record be changed to reflect an Honorable characterization of service based on the facts of the matter. I will send any supporting documentation to prove my injustice. I currently have two letters from two of the lawyers assigned to my case while I was still in the military, and I also have a court document showing that the arrest charge for solicitation was dismissed. I will answer and discuss any further matters of this request when meeting with a representative from the Army Review Board Agency. Thank you for hearing my request and I hope you have the power to change this very important document to reflect my Honorable service to the great country of The United States of America. God Bless and Thank You.

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: 050907
Discharge Received: 			   Date: 051202   Chapter: 14-12b    AR: 635-200
Reason: Pattern of Misconduct	   RE:     SPD: JKA   Unit/Location: 518th CS Maint Co, Fort Bliss, TX 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 020312, assault and battery (011010), forfeiture of $473 (suspended), 14 days extra duty (CG).

050310, assault and battery (050123), reduction to E-4, 45 days of extra duty and restriction (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  30
Current ENL Date: 031215    Current ENL Term: 3 Years  ?????
Current ENL Service: 	01 Yrs, 00Mos, 18Days ?????
Total Service:  		11 Yrs, 09Mos, 16Days ?????
Previous Discharges: 	RA 940217-961007/HD
                                       RA 961008-000216/HD
                                       RA 000217-031214/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 63B10/Wheel Vehicle Mech   GT: 118   EDU: HS Grad   Overseas: Korea, Thailand, Kuwait, Hawaii   Combat: None
Decorations/Awards: ARCOM, AAM-3, JMUA, AGCM-4, GWOTSM, NDSM-2, KDSM, AFEM, HSM, NCOPDR, ASR, OSR-2

V.  Post-Discharge Activity
City, State:  Michigan City, IN
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 7 September 2005, 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 pattern of misconduct—for being issued a military protection order for threatening his wife, for being arrested for solicitation, for failure to report to his designated place of duty, for leaving the scene of an accident, for being disrespectful to an NCO and for assaulting his wife, with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 16 November 2005, the applicant consulted with 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 Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed discharge action and recommended approval with a general, under honorable discharge.  
       
       On 16 November 2005, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a general, under honorable conditions discharge. 
       
       The record contains an MP Report dated 23 January 2005 which indicates the applicant was the subject of an investigation of assault and battery and spouse abuse.

       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, and the issue and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  
       
       The analyst determined that 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 the repeated incidents of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  
       
       The applicant contends he was going through a medical process for separation; however, the record does not support the applicant’s contention, and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition.  
       
       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.  He further contends that he did not waive his rights, however, the record contains a document dated 16 November 2005 which was signed by him and his military counsel and in which he waived his right to an administrative separation board.  The analyst found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.    
       
       Therefore, 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: 24 June 2010         Location: Chicago, IL

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

Exhibits Submitted: Self-authored statement, Trial Defense Services letter of explanation from CPT R., Trial Defense Letter of support and explanation from 1LT M, original separation documents, citation dismissal, spouse's sworn statement, counseling statements, attorney's statement, motion to dismiss. 

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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 AR20090020698
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