Applicant Name:  ?????

Application Receipt Date: 20100317	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: Applicant states that his "general discharge was improper and unjust because the aggravated assault with a deadly weapon were dropped by the DA but four days after he was discharge from the Army".

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   No

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 060713
Discharge Received: 			   Date: 060811   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: 514th Maintenance Company, 548th Corps Support Battalion, Fort Drum, NY 

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:  22
Current ENL Date: 050421    Current ENL Term: 3 Years  22 years
Current ENL Service: 	01 Yrs, 03Mos, 21Days ?????
Total Service:  		01 Yrs, 03Mos, 21Days ?????
Previous Discharges: 	None
Highest Grade: PV2		Performance Ratings Available: Yes    No 
MOS: 52C10/Utility Equip Rep   GT: 94   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, ASR

V.  Post-Discharge Activity
City, State:  San Antonio, TX
Post Service Accomplishments: None submitted by the applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 13 July 2006, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct for numerous serious offenses since his arrival in the unit, with a general, under honorable conditions discharge.  
       
       On or about 16 January 2006, the applicant wrongfully assaulted a Soldier in the Fort Drum Mini Mall and wrongfully damaged AAFES property.  On or about 13 March 2006, the applicant was involved in a verbal altercation which turned physical outside of his residence in San Antonio, Texas.  The applicant went inside an apartment, pulled a gun and shot a 15-year old boy in the back causing serious injury.  The applicant was arrested and charged with assault with a deadly weapon.  On or about 14 April 2006, the applicant was involved in a verbal altercation with several people at a local night club.  The applicant refused to obey a lawful order from a local police officer to depart the area and continued to confront other people.  The applicant was subsequently arrested for disorderly conduct. On or about  25 June 2006, the applicant was involved in a verbal altercation with another Soldier which turned physical.  Instead of leaving the area as the local police ordered him to do, the applicant continued pursing the altercation with the other Soldier.  The altercation became physical when the applicant punched the other Soldier in the face several times and punched out the driver's side window of a privately owned vheicle.  The applicant continued his aggressive behavior by resisting arrest to a point where he had to be subdued with pepper spray.  The applicant continued assaulting the arresting officer by doubling his fist in an aggressive manner and refusing to enter the patrol car.  The applicant was held by New York State authorities and was extradited to Texas.  He was advised of his rights.  
       
       On 13 July 2006, the applicant consulted with legal counsel, was advised of the impact of the discharge action,  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 action and recommended approval of the separation with a general, under honorable conditions discharge.  
       
       On 27 July 2006, the separation authority waived further rehabilitative efforts and directed the applicant’s discharge with a characterization of service of general, under 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, the issue and documents submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge.  
       
       The analyst determined that the applicant’s discharge was appropriate because the quality of service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  By the misconduct, the applicant diminished the quality of the former Soldier’s service below that meriting a fully honorable 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.  
       
       The analyst noted the applicant's issue.  However, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. Additionally, the applicant was notified that separation action was initiated for numerous serious offenses.
       
       Therefore, the analyst determined 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: 25 February 2011         Location: Dallas, TX

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: Motion to Dismiss Document, "Metro and State News" newspaper article, "Woods Federal Courthouse" article, Press Advisory for Law Office of James W. Myart, email from CPT Lev Jacoby to James W. Myart, Jr.

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: No Change
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 AR20100011183
______________________________________________________________________________


Page 1 of 3 pages