Applicant Name:  ?????

Application Receipt Date: 2011/09/26	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he was unfairly discharged after all charges of child pornography had been dropped.  He feels the command had already made a decision to discharge him even before he submitted his election of rights.  He was up for a court-martial before the Chapter 14 was initiated. He requests an upgrade of his discharge to fully honorable. 

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: 110406
Discharge Received: 			   Date: 110524   Chapter: 14-12c    AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: 95th Chemical Co, Joint Base Elmendorf-Richardson, Alaska 

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:  19
Current ENL Date: 071018    Current ENL Term: 5 Years  ?????
Current ENL Service: 	03 Yrs, 07 Mos, 06 Days ?????
Total Service:  		05 Yrs, 01 Mos, 05 Days ?????
Previous Discharges: 	RA 060420-071018/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 74D10/Chemical Ops Spc   GT: 94   EDU: HS Equivalent   Overseas: Alaska   Combat: None
Decorations/Awards: NDSM, GWOTSM, ASR, OSR

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 6 April 2011, 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, for knowingly possessing video files and photographs of child pornography, with a general under honorable conditions discharge.  He was advised of his rights.  
       
       On 2 May 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted a statement in his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation with a general, under honorable conditions discharge.  
       
       On 2 May 2011, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.
       
       The applicant’s record contains a CID Report dated 28 May 2009.  

       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, the documents, and the issues 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 his serious incidents of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  
       
       The applicant contends that his discharge had already been approved before he submitted his election of rights.  However, he did not provide any independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance. 
       
       The analyst determined that the command initially was going to court martial the applicant and opted to pursue an administrative discharge instead.  This action is a procedural step, which is part of a normal process when an alternative forum is chosen.  The analyst found no evidence of arbitrary or capricious actions by the command and 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 record shows that he signed his election of rights the same date he was notified  by the unit commander.
       
       The applicant also contends that that he was unfairly discharged because all charges of child pornography were dropped.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that he was unjustly discharged.  In fact, the applicant’s sworn statement to the CID Agent contained in the record indicates the applicant admitted that he was downloading child pornography, viewing it and getting aroused by it.  The applicant’s statements alone do not overcome the government’s presumption of regularity.  Moreover, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. 
       
       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: 30 March 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: Dismissal of charges, DD Form 214, 3 character reference letters, personal statement to the MEB, and a self authored statement.

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						
Board Vote:
Character - Change 0    No change 5
Reason -     Change 0    No change 5
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:



EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
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 AR20110019686
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