Applicant Name:  ?????

Application Receipt Date: 2010/03/23	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he was given an other than honorable conditons discharge and wishes to have it changed to honorable. He was separated from the Army before he was found innocent by a court of law. He still wants to join the military to further serve his country. 

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: 080429
Discharge Received: 			   Date: 081009   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: 988th Military Company, 92nd Military Police Battalion, Fort Benning, GA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): NIF

Courts-Martial (Charges/Dates/Punishment): NIF

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  34
Current ENL Date: 061017    Current ENL Term: 5 Years  ?????
Current ENL Service: 	1 Yrs, 11 Mos, 23 Days ?????
Total Service:  		1 Yrs, 11 Mos, 23 Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 31B10 Military Police   GT: 101   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, GWTSM, ASR

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 complete facts and circumstances leading to the applicant’s discharge from the Army are not contained in the available records.  However, the evidence of record shows that on 24 September 2008, the Staff Judge Advocate in his memorandum for the commander, US Army Infantry Center, Fort Benning, GA indicated that the unit commander initiated a separation action against the applicant under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of misconduct-commission of a serious offense; in that he was found in the possession of child pornography by the civilian authorities, and recommended that the applicant be discharged with an under other than honorable conditions discharge. 
       
       He further stated that the applicant acknowledged receipt of the notification letter dated 29 April 2008.  The applicant's election of rights is not contained in the available record and the analyst presumed government regularity in the discharge process.   On 31 July 2008, the applicant was notified to appear before an administrative separation board and advised of his rights.  On 22 September 2008, the administrative separation board convened.  The applicant appeared with counsel.  The board recommended the applicant be discharged with issuance of a character of service of under other than honorable conditions.
         
       On 24 September 2008, the separation authority approved the findings and recommendation of the administrative separation board and directed the applicant be discharged with a characterization of service of under other than honorable conditions.  The applicant was to be reduced to the lowest enlisted rank.  

       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 was separated from the Army before he was found innocent by a court of law and that he still wants to join the military to further serve his country.  The analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 
       
       Further, the applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  Having examined all the available circumstances, the analyst determined that the applicant's single incident of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline.  If the applicant desires to reenlist, he should contact the local recruiter to determine his eligibility to reenlist.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes.  
       
       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: 8 November 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293 dated 18 March 2010.

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 AR20100011679
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