Applicant Name:  ?????

Application Receipt Date: 2011/01/11	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states "since what I was accused of was on my computer, I didn't think anything I said would make people believe I was innocent so I admitted to it and was taking the fall for someone downloading things on my computer. I wasn't around when other people used my computer. My roommate at the time knew how to hack into my computer for his friends to use it. I had no punishment for what I was accused of, and as far as I know, I was found not guilty but still given a discharge that kept me from my GI Bill and any Veteran Benefits. I did serve 9 months in Iraq while the investigation was happening. It went on for almost 2 years. I wasn't guilty for what I was accused of and if I was, then something would've been found. Since I've been out, I've gotten a great job, getting married, and am wanting to go back to College to get my bachelors in information technology, but would like the help of the GI Bill to assist me in the financial part of it."

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: NIF
Discharge Received: 			   Date: 080827   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: B Troop, 2nd Squadron, 14th Cavalry Regiment, 2nd Stryker Brigade Combat Team, Camp Taji, Iraq 

Time Lost: None

Article 15s (Charges/Dates/Punishment): The unit commander's recommendation for separation indicates the applicant received a Article 15 for , wrongful previous overindulgence on (070315); however, the Article 15 is not part of the available record.  

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 050419    Current ENL Term: 4 Years  18 weeks
Current ENL Service: 	3 Yrs, 4 Mos, 9 Days ?????
Total Service:  		3 Yrs, 4 Mos, 9 Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 19D10 Cavalry Scout   GT: 103   EDU: HS Grad   Overseas: Hawaii, Southwest Asia   Combat: Iraq (071210-080819)
Decorations/Awards: NDSM, GWOTSM, ICMDLw/CS, CAB, ASR, OSR

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 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 wrongfully possessed child pornography (060806), with an under other than honorable conditions discharge.  He was advised of his rights.  The applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally 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 service and waiver of further rehabilitative efforts.  The intermediate commander's reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.  On 1 July 2008, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of under other than honorable conditions  
       
       The applicant received a General Officer Memorandum of Reprimand (GOMOR) for wrongfully possessing images of child pornography and performing internet searches for child pornography dated 6 May 2008, (Administrative)
       
       The record also contains a CID Report of Investigation in reference to the applicant's offense of wrongful possession of child pornography dated 25 September 2006.   

       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 found not guilty, but was still given a discharge that kept him from his GI Bill and any other Veteran Benefits and he had served 9 months in Iraq.  The analyst determined that this action was a procedural step, which is part of a normal process, when an alternative forum is chosen.  In this case the charges were referred to the FBI, Honolulu, HI, who assumed all investigative and prosecutorial responsibility of the investigation according to CID Report of Investigation. 
       
       Because of the misconduct and the applicant not conforming to required standards of discipline and performance, the command appropriately determined that the applicant did not demonstrate the potential for further military service and initiated separation action under the provisions of Chapter 14-12c, AR 635-200, by reasosn of misconduct-commission of a serious offense, which the separation authority approved.  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.   
       
       Additionally, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 
       
       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: 26 August 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: Online application dated 7 January 2011.

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 AR20110000898
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