Applicant Name:  ?????

Application Receipt Date: 2012/02/27	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he feels his civil conviction should not have warranted an under other than honorable discharge due to his length of service with no other adverse actions.  His discharge was base on one unusual and isolated incident over a period of 16 years of exemplary service.  He always served with loyalty and dignity one every assignment he was ever given throughout his career.  He made many sacrifices over the years for his country and earned many awards and numerous citations during his service.  He served honorably in Iraq and Kuwait in 2003 and 2005.  While incarcerated he has completed several programs to better himself as a person and better prepare him for his re-entry back into society.  He intends to use the training he received from the military to help him obtain his ultimate employment goal.  He trying to better himself and stay mentally sharp.  He has spent every day since his incarceration regretting his actions that caused his incarceration.  He is already paying his debt to the state for his mistake, and that is why he doesn’t feel that his conviction should reflect on his discharge due to the many years and many accomplishments that he obtained while on active duty.  He feels that he is deserving of a discharge that will entitle him to the type of benefits that he should receive for the countless missions he was a part of and for all the sacrifices that he and his family made to aid in the defense of the nation.  

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: 100301
Discharge Received: 			   Date: 100825   Chapter:  14, Sec II     AR: 635-200
Reason: Misconduct, (Civil Conviction)	   RE:     SPD: JKB   Unit/Location: Rear Detachment, 67th Expeditionary Signal Battalion, 35th Tactical Theater Support Brigade, Fort Gordon, Georgia                      

Time Lost: Civil incarceration through date of discharge (090320 – 100825); currently incarcerated.

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: 050307    Current ENL Term: INDEF Years  ?????
Current ENL Service: 	5    Yrs, 5 Mos, 18 Days ?????
Total Service:  		15  Yrs, 8 Mos, 5   Days ?????
Previous Discharges: 	RA 930715 - 960609/HD
                                       RA 960610 - 981007/HD
                                       RA 981008 - 010717/HD
                                       RA 010718 - 050306/HD
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 92G10 Food Service Operations   GT: 102   EDU: HS Grad   Overseas: Italy, Germany, Korea, SWA   Combat: Iraq (030217 - 040220), Kuwait (050213 - 060121)
Decorations/Awards: ARCOM x 4, AAM x 4, AGCM x 5, NDSM x 2, ICM w/CS, GWOTEM, GWOTSM, KDSM, NCOPDR x 3, ASR, OSR


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 1March 2010, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-5, AR 635-200, by reason of misconduct, conviction by civil court, for being convicted by the Superior Court of Richmond County, Georgia of Child Molestation, where he engaged in sexual intercourse with a child under the age of sixteen (16) years (100128), with an under other than honorable conditions discharge.  He was advised of his rights.  
       
       On 2 March 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested an administrative separation board 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 19 May 2010 and again on 8 June 2010 the applicant was notified to appear before an administrative separation board and advised of his rights.  
       
         On 10 June 2010, the administrative separation board convened.  Counsel appeared on behalf of the applicant.  The board recommended the applicant be discharged with issuance of a character of service of under other than honorable conditions.
         
       On 10 August 2010, 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.
       
       The record contains Superior Court of Richmond County, Georgia, indictment number 2009-RCCR-698.

       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 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 should not be punished twice for the same offense.  Once by the civilian court, and again by the discharge he 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. 
       
       The analyst noted that even though a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The analyst having examined all the circumstances determined that the applicant's single incident of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline.  This single incident of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge. 
       
       The analyst acknowledges the applicant’s in-service accomplishments and considered the length and quality of his service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge.
        
       The analyst noted the applicant's issues about his desire to have better job opportunities and receive the benefits of the GI Bill.  However, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  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 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: 1 August 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. 

Furthermore, notwithstanding the propriety of the applicant's discharge, the Board determined that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, re-entry code as “4.”   In view of the error the Board directed an administrative correction to block 27 to read “RE-3,” as required by Army Regulations.   








        
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:




ARCHIE L. DAVIS III
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 AR20120004403
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