Applicant Name:  ?????

Application Receipt Date: 2010/10/19	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states:  “I did not deploy with my unit to Iraq in 2008 as I had been rated as undeployable by medical authorities. I underwent a Medical Evaluation Board/Physical Evaluation Board (DA Form 199) during 2008 and it was completed on 22 April 2009: The MEB recommended that I be placed on the Temporary Disability Retired List (TDRL) with a rating of 60%. United States Army Garrison, Ft Eustis medically retired me on 22 May 2009 and placed me on the TDRL on 23 May 2009 in the rank of Specialist (E-4). I also received a DD-214 dated 22 May 2009 designating the type of separation as "Retirement" and the character of service as "Honorable". My unit returned to Ft Eustis in May, 2009 and the command initiated action on 21 May 2009, the day before my retirement, to rescind my medical retirement and further initiated action to discharge me under other than honorable conditions. I consider their action to discharge me under other than honorable conditions unjust and onerously vindictive. I had served two previous tours in Iraq and Afghanistan, was found medically unfit for further combat assignments by competent medical authorities, and because I had not deployed with the organization in 2008, they decided to punish me when they returned to the USA. The MEB plainly states that I was unfit for further duty.”

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: 090608
Discharge Received: 			   Date: 090701   Chapter: 14-12b    AR: 635-200
Reason: Pattern of Misconduct	   RE:     SPD: JKA   Unit/Location: 202d MP Co, Fort Eustis, VA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 080110, engaged in sexual contact with SGT E by hitting her on the buttocks without her permission (070831), reduction to E-5, forfeiture of $1,227 for two months (suspended), (FG)

080612, with intent to deceive signed an official record which was false (080305), reduction to E-4 (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  24
Current ENL Date: 051209    Current ENL Term: 6 Years  ?????
Current ENL Service: 	03 Yrs, 06Mos, 22Days ?????
Total Service:  		09 Yrs, 10Mos, 08Days ?????
Previous Discharges: 	RA 990824-051208/HD
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 92G30/Food Svc NCO   GT: 111   EDU: HS Grad   Overseas: Germany, SWA   Combat: Afghanistan (041228-051223), Iraq (030305-040304) 
Decorations/Awards: AAM-3, ACM-CS, ICM-CS, AGCM-2, NDSM, GWOTSM, ASR, OSR-3

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 8 June 2009, 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 on or about 10 January 2008, he received a Field Grade Article 15 for engaging in wrongful sexual contact with SGT E, to wit: hitting her on her buttocks. On or about 1 May 2007 and 30 June 2007, he orally communicated to SGT A, certain indecent language, to wit: "I had you bent over the table in the TOC and I was fucking the shit out of you", or words to that effect.  Between on or about 1 May 2007 and 30 June 2007, orally communicated to SPC M, certain indecent language, to wit: " What would it take to get into your pants" or words to that effect.  Between on or about 1 November 2007 and 29 November 2007, orally communicated to PV2 M, certain indecent language, to wit: "Get your sexy ass over here" or words to that effect. Between on or about 1 June 2007 and 1 October 2007, offer alcohol to PFC M, an underage individual.  He also received a Field Grade Article 15 on or about 14 June 2008, for signing, with intent to deceive, an official record, DA Form 31, authority for leave, which record was false in that you did not give the proper address.  The unit commander recommended separation from the Army with an under honorable conditions discharge and advised the applicant of his rights.
       
       The applicant consulted with legal counsel, unconditionally waived his right to appear before 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 senior commanders reviewed the proposed elimination action and recommended approval with an under other than honorable conditions discharge.  
       
       On 25 June 2009, the separation authority approved the unconditional waiver request, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.
       
       The record contains the Physical Evaluation Board Proceedings and order which would have placed the applicant on the retired list effective 23 May 2009 with 60 percent disability.  The PEB process was appropriately terminated due to initiation of separation proceeding under the provisions of Chapter 14, AR 635-200.

       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 available military records during the period of enlistment under review, the issues and documents submitted with the application, the analyst recommends that the applicant’s characterization of service be upgraded to general, under honorable conditions.  
       
       This recommendation was made after full consideration of the former Soldier’s faithful and honorable service, as well as the record of misconduct.  The evidence in this case supports a conclusion that the applicant’s characterization of service was too harsh, and as a result it is inequitable.  While the applicant's misconduct is not condoned, the analyst noted that the overall length and quality of the applicant's service, to include his multiple combat tours in Iraq and Afghanistan, and his PTSD diagnosis mitigated the discrediting entries in the service record.  The applicant served for almost 10 years, achieved the rank of Staff Sergeant, earned numerous awards and had been diagnosed with post-traumatic stress disorder for which he was going to be rated at 60 percent disabled.   
       
       In view of the foregoing, the analyst recommends to the Board that the applicant’s characterization of service be partially upgraded to general, under honorable conditions.  However, the reason for discharge remains both proper and equitable.  This action entails a restoration of grade to SPC/E-4.  

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 29 June 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 214 (worksheet), PEB proceedings documentation, and medical retirement orders.

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief.  Further, the Board determined that Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 1    No change 4
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 AR20100023962
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