Applicant Name:  ?????

Application Receipt Date: 2011/10/03	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that under Title 10, United States Code Section 1553, she is requesting an upgrade due to the fact that she had her record cleared and her probation was removed on 26 August 2010.  She has not received any of her VA benefits due to the negligent felony that is currently being fixed and cleared that didn't involve the military.  The military got rid of her instead of hearing her story and left her in a dilemma. 

Since her discharge she has demonstrated honorable behavior by currently owning a Non-Profit Community Youth Program working with kids ranging in the age of 5 to 18 years.  She has passed numerous background checks; getting state commissioning, regional and national recognition that exemplifies her military behavior and would like to have the military credit and benefits to show in her change of discharge.  She wants to seek after the benefits that she earned from serving in the military.    

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: 090220
Discharge Received: 			   Date: 090327   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: HQ & HQ Company, US Army Garrison, Fort Huachuca, AZ 

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:  37
Current ENL Date: 060626    Current ENL Term: 3 Years  26 weeks
Current ENL Service: 	2 Yrs, 9  Mos, 2  Days The net active service this period on the DD Form 214, block 12c is incorrect; should be as annotated above.
Total Service:  		2 Yrs, 9  Mos, 2  Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 92G10 Food Service Oper   GT: 88   EDU: 14 Years   Overseas: NIF   Combat: None
Decorations/Awards: NDSM, GWOTSM

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: The applicant stated in her issue that since her discharge she has demonstrated honorable behavior by currently owning a Non-Profit Community Youth Program working with kids ranging in the age of 5 to 18 years. 



VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 20 February 2009, 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 she solicited and accepted bribes collectively valued at $4,500.00 from an FBI informant, with the understanding that she would give preferential consideration to their company for movement of Soldiers from the Tucson International Airport to Fort Huachuca, Arizona. 
       
       The unit commander recommended separation with an under other than honorable conditions discharge.  She was advised of her rights.  The applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of her 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 17 March 2009, 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 was to be reduced to the lowest enlisted rank. 
       
       The record cotnains a CID Report of Investigation in reference to the applicant's offense of bribery dated 5 February 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 issue 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 her 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 her 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 she is requesting an upgrade due to the fact that she had her record cleared and her probation was removed on 26 August 2010.  She has not received any of her VA benefits due to the negligent felony that is currently being fixed and cleared that didn't involve the military.  The applicant contends that she was punished twice for the same offense.  Once by the civilian court, and again by the discharge she received. 
       
       
       
       
       
       
       However, 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. 
       
       Further, 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.  
       
       The applicant further contends that since her discharge she has demonstrated honorable behavior by currently owning a Non-Profit Community Youth Program working with kids ranging in the age of 5 to 18 years and she has passed numerous background checks; getting state commissioning, regional and national recognition that exemplifies her military behavior and would like to have the military credit and benefits to show in her change of discharge. 
       
       The analyst acknowledges the applicant's successful transition to civilian life and noted the many accomplishments outlined in her application and/or in the documents with her application.  The applicant is to be commended for her efforts.  However, in review of the applicant’s entire service record, the analyst found that these accomplishments did not overcome the reason for discharge and characterization of service granted. 
       
       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: 4 April 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted:  















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: No Change
RE Code: 
Grade Restoration:   No   Yes   Grade: No Change

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 AR20110020326
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