Applicant Name:  ?????

Application Receipt Date: 20011/02/08	Prior Review:     Prior Review Date: 6 May 2009.

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, through counsel, in effect, that the right to a personal appearance is a statutory right under 10 USC 1153 (c).  Review of the validity of discharge order by the ABCMR does not result in the forfeiting of the statutory right to a personal appearance before the ADRB to consider the characterization of discharge.

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: 051007
Discharge Received: 			   Date: 070511   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: HHC, 81st RSC, Fort Campbell, KY 

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:  47
Current ENL Date: 030602    Current ENL Term: INDEF Years  ?????
Current ENL Service: 	03 Yrs, 11 Mos, 09 Days ?????
Total Service:  		26 Yrs, 00 Mos, 12 Days ?????
Previous Discharges: 	RA 780228-820226/HD
                                       IADT 770708-771001/HD
                                       USAR 870430-951104/NA
                                       USAR 951105-030601/NA
Highest Grade: E-7		Performance Ratings Available: Yes    No 
MOS: 79V40/Retention and Transition NCO   GT: 103   EDU: BS   Overseas: Germany, Honduras, El Salvador   Combat: None
Decorations/Awards: AAM, ARCAM, NDSM, NCOPDR-3, ASR

V.  Post-Discharge Activity
City, State:  Nashville, TN
Post Service Accomplishments: None

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 7 October 2005, 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—commission of a serious offense and for having been convicted by a civil court.  Charges included assault multiple times, communicating a threat, and disrespect and disobeying a lawful order from an NCO on multiple occasions.  
       
       On 10 July 2006, the unit commander once again, notified the applicant of his pending elimination action and stated additional grounds for such action as conviction of aggravated assault (000808), conviction of disobeying a court order (050909), failure to obey a lawful order to attend domestic violence counseling, civil conviction of aggravated assault (000808) which was dismissed, for being charged with multiple counts of assault on a family member, for communicating a threat to his wife on multiple occassions, and for being disrespectful and disobeying a lawful order from a NCO. The unit commander recommended separation 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, requested an administrative separation board, and submitted 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 recommendation is not contained in the available record.  
       
       On 27 December 2005, the applicant appeared with counsel before the administrative separation board.  The board recommended that the applicant be discharged with issuance of a character of service of general, under honorable conditions.  
       
       The document that contains the separation authority’s decision and approval is not contained in the record and the analyst presumed government regularity in the discharge process.  
       
       On 11 May 2007, the applicant was 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 the entire applicant’s available military records, the issue, and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge. 
       
        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 his misconduct, the applicant diminished the quality of 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 reord indicates that the applicant was discharged under the provisions of Chapter 14, paragraph 14-12c, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)” and the separation code is "JKQ."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  
       
       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: 6 June 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel:  [ redacted ]

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 149, memorandum from attorney

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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: 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 AR20110002781
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