Applicant Name:  ?????

Application Receipt Date: 2010/03/24	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, "he served his country for 6 years plus and upon his discharge, he was not forwarded the right to an administrative separation board and due to this fact, he believes he was wrongfully discharged." 

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: 070228
Discharge Received: 			   Date: 070313   Chapter: 14-12c       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKQ   Unit/Location: G Company, 10th Brigade Support Battalion, Fort Drum, NY 

Time Lost: AWOL x from (061024-061127) for 34 days. The applicant returned to his unit.

Article 15s (Charges/Dates/Punishment): 061212, AWOL from (061024-061127), reduction to Sergeant (E-5), forfeiture of $1,136.00 pay per month for 2 months, suspended, to be automatically remitted if not vacated before (070612), extra duty and restriction for 45 days and an oral reprimand (FG)

Article 15, 070213, disrespect toward CPT, his superior commissioned officer on or about (070201), wrongfully have sexual intercourse with a Private First Class, a woman not his wife between on or about (070101-070206), reduction to Specialist (E-4), forfeiture of $1,031.00 pay per month for 2 months, suspended, to be automatically remitted if not vacated before (070818), extra duty and restriction for 45 days (FG) 

The suspension of the punishment of forfeiture of $1,136.00 pay per month for 2 months imposed on (061214) was vacated, effective (070212) based on the applicant's offense of disrespect toward CPT, his superior commissioned officer on (070201), disobeyed a lawful order from SFC, a noncommissioned officer on or about (070118), and wrongfully having sexual intercourse with a PFC, a woman not his wife on or about (070101). 

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: Reenl/050201    Current ENL Term: 3 Years  ?????
Current ENL Service: 	2 Yrs, 0 Mos, 10 Days ?????
Total Service:  		6 Yrs, 3 Mos, 8 Days ?????
Previous Discharges: 	RA 001102-050131/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 63B10 Wheeled Vehicle Mech   GT: 95   EDU: GED Cert   Overseas: Germany (010503-030227), Germany (040302-050627), Southwest Asia    Combat: Iraq (030228-040301)
Decorations/Awards: ARCOM (2), AAM (3), GCMDL, NDSM, GWTEM, GWTSM, ICMDL, NCOPDR, ASR, OSR (2)

V.  Post-Discharge Activity
City, State:  ?????
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 28 February 2007, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14-12c, AR 635-200, by reason of misconduct-commission of a serious offense; in that he went AWOL from (061024-061127), wrongfully have sexual intercourse with a female Soldier while he was legally married to another woman between on or about (070101-070206), failed to obey a lawful order from a commissioned officer on or about (070118), and was disrespectful toward a commissioned officer on or about (070201), with a general, under honorable conditions discharge. 
       
       He was advised of his rights.  On 1 March 2007, the applicant waived 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 service and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge.  On 1 March 2007, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged 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, and the issue 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 his 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 his 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 that he served his country for 6 years plus and upon his discharge, he was not given the right to an administrative separation board and due to this fact, he believes he was wrongfully discharged.  The evidence of record shows that the applicant was informed of his right to consult with legal counsel and on 1 March 2007, according to his election of rights document in his official military personnel record (OMPF) regarding his separation under the provisions of Chapter 14-12c, he declined the opportunity to consult with legal counsel and indicated that he understood that when he failed to request an administrative separation board in writing, he waived that right.  Further, the applicant authenticated the document with his signature.  
       
       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: 10 December 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: ?????

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293 dated 18 February 2010, and a self authored statement.

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: No Change										
RE Code: 
Grade Restoration:   No   Yes   Grade: No Change















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 AR20100011209
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