Applicant Name:  ?????

Application Receipt Date: 2011/10/07	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he was discharged based due to his civil conviction and not because of his military performance while on active duty.  He was a stellar Soldier, received awards and excelled in the ranks.  He attended leadership training and was placed in a supervisory role as an E-4 and completed one tour of Iraqi Freedom.  He completed one full term of enlistment and enlisted two more times after that.

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: CDR's memorandum is undated
Discharge Received: 			   Date: 070221   Chapter:  14, Sec II     AR: 635-200
Reason: Misconduct, (Civil Conviction)	   RE:     SPD: JKB   Unit/Location: Headquarters Service Battery, 2nd Battalion, 11th Field Artillery, 2nd Brigade, 25th Infantry Division, Schofield Barracks, Hawaii                     

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:  22
Current ENL Date: 050228    Current ENL Term: 6 Years  ?????
Current ENL Service: 	1  Yrs, 11 Mos, 22 Days ?????
Total Service:  		5  Yrs, 8   Mos, 26 Days ?????
Previous Discharges: 	RA 030730 - 050207/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 42L10 Administrative Specialist   GT: 120   EDU: HS Grad   Overseas: Hawaii, SWA   Combat: Iraq (040111 - 050111)
Decorations/Awards: ARCOM x 3, AAM x 3, AGCM, NDSM, GWOTEM, GWOTSM, NCOPDR, ASR, OSR x 3

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 the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, Section II, AR 635-200, by reason of misconduct, conviction by civil court, and having been entenced by civil authorities to confinement for 1 year, 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, waived his right to an administrative separation board contingent upon him receiving a characterization of service no less favorable than general, under honorable conditions  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 commander reviewed the proposed action and recommended approval of the separation with an under other than honorable conditions discharge. 
       
       On 14 January 2007, the administrative separation board convened.   The applicant was represented by counsel.  The board recommended the applicant be discharged with issuance of a character of service of general, under honorable conditions.
         
       On 5 February 2007, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 
       
       The record contains the court record documents, number 06-1-0583.
       
       The record contains the final judgment and sentence of the court dated, 25 August 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 the applicant’s available military records, the issues and documents 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 misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant plead guilty to sexual assault in the 2nd degree, abuse of a family and household member, attempted sexual assault in the 2nd degree, and terroristic threatening in the 2nd degree.
       
       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 applicant contends that he was never found guilty of anything by the military; the crime he committed was off post while he was out of uniform and off duty.  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: 6 April 2012         Location: Washington, D. C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

Exhibits Submitted: DD Form 293 with a self-authored statement and a DD Form 214.

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: No Change
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 AR20110020252
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