Applicant Name:  ?????

Application Receipt Date: 2011/08/04	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, through counsel that the upgrade is requested because the administrative separation board did not have the opportunity to fully consider mitigating evidence about PTSD as the defense did not present such evidence to the Board.

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: 090323
Discharge Received: 			   Date: 090806   Chapter: 14-12c    AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: Headquarters and Headquarters Company, 1st Brigade Combat Team, 82nd Airborne Division, Fort Bragg, NC 

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:  29
Current ENL Date: 070809    Current ENL Term: Indef Years  ?????
Current ENL Service: 	 1     Yrs,  11  Mos,  27  Days ?????
Total Service:  		 12   Yrs,   0   Mos,  0    Days ?????
Previous Discharges: 	USMC 961015 - 001014/HD
                                       RA      010807 - 040916/HD
                                       RA      040917 - 050707/HD
                                       RA      050708 - 070808/HD 
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 11B1P Infantryman   GT: 120   EDU: HS Grad   Overseas: SWA   Combat: Iraq (030813 - 040214) and (060801 - 071031) Afghanistan (020707 - 030114) and (040920 - 041101)
Decorations/Awards: ICM w/2CS, Marine Corps Meritorious Mast x 2, ARCOM x 4, AAM, Navy Meritorious Unit Commendation, VUA, AGCM x 2, Marine Corps Good Conduct Medal, NDSM, AFEM x 2, ACM w/2CS, GWOTEM, GWOTSM, HSM, NPDR x 2, USN and USM Expeditionary Award, CIB

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






VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 23 March 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, Section III, paragraph 14-12c, AR 635-200, by reason of misconduct, commission of a serious offense, for soliciting a child for sexual intercourse by computer (070628) and (080102), with an under other than honorable conditions discharge.  He was advised of his rights.  
       
       On 25 March 2009, the applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board, contingent upon his receiving a characterization of service of no less favorable than general, under honorable conditions.  The applicant submitted a statement on his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  
       
       On 26 May 2009, the separation authority disapproved the applicant's conditional waiver.  
       
       On 29 May 2009, the applicant was notified to appear before an administrative separation board and advised of his rights.  On 1 July 2009, the administrative separation board convened.  The applicant appeared with counsel.  The board recommended the applicant be discharged with issuance of an under other than honorable conditions discharge.
         
       On 16 July 2009, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.
       
       Record contains a Feyetteville Police Department Incident Report (2008-001782).

       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 carefully examining the applicant’s record of service during the period of enlistment under review the issues and documents he submitted, the analyst determined that the discharge was both proper and equitable.  There was a full consideration of all faithful and honorable service as well as the infraction of discipline, the extent thereof, and the seriousness of the offense.  
       
       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 his 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 considered counsel’s argument that the applicant should have been referred for rehabilitative treatment and was not carefully and found no evidence of arbitrary or capricious actions by the command.  
       
       Army Regulation 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, that the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  After reviewing the applicant’s discharge packet, the separation authority properly waived the rehabilitative requirements.
       
       Additionally the analyst noted counsels argument that the applicant was not allowed to call additional witnesses before his board; however, 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.  
       
       The analyst noted that counsel contends that it is significant that the applicant did not posses child pornography; however, the discrediting entry that constituted a departure from the standards of conduct expected of Soldiers in the Army was that of soliciting a child for sexual intercourse by computer not possession of child pornography; therefore, the argument is moot.  The analyst having examined all the circumstances determined that the applicant's misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline and clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge or general, discharge under honorable conditions.
       
       The applicant contends mitigating circumstances contributed to his misconduct; specifically, family issues contributed to his discharge.  While the applicant may believe his family issues were the underlying cause of his misconduct, the record of evidence does not demonstrate that he sought relief from stress through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other resources available to all Soldiers.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.
       
       The analyst noted the PTSD diagnosis from the Veterans Administration.  However, in review of the applicant's entire service record, the analyst found that this medical condition did not overcome the reason for discharge and characterization of service granted.  The analyst concluded that just because the applicant suffers from PTSD does not mean he doesn't know the difference between right and wrong or that he did not have control over his behavior.  There are many Soldiers with the same condition that complete their service successfully.
       
       The analyst acknowledges the applicant's length of service and accomplishments as stated in his application.  However, the analyst did not find the said issue sufficiently mitigating to warrant an upgrade of the discharge under review.  
       
       Therefore, the analyst determined 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: 20 December 2011         Location: Washington, D. C.

Did the Applicant Testify?  Yes     No  

Counsel: Mr. Todd C. Conormon, Military Justice Center, 120 Westlake Road, Unit #6, Fayetteville, NC  28314

Witnesses/Observers: None 

Exhibits Submitted: DD Form 293 with various attachments which include an attorney's memorandum, administrative separation board findings, transcript and appointment, 2 DD Form 214's, military service resume, articles from the internet, and a personal statement from the applicant.

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: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

Official:




BONITA E. TROTMAN
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
























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 AR20110016090
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