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:  “I wish to submit the following statement in support of my request for an upgrade to my character of service.  I was involved in a criminal investigation originating from a rape charge. The woman who made the charge had actually had consensual sexual activities with me and two of my buddies. However, she later charged us with rape. This happened after I redeployed from Iraq and was assigned to Baumholder, Germany.  I went on leave to Amsterdam and made a very stupid mistake. I smoked some marijuana, thinking I had nothing to lose because I was facing jail time. This caused me to have a positive urinalysis when I returned from leave to my unit.  In the end, the charges were dropped. My lawyer investigated the woman making the charges and discovered that she had made other, similar charges at a previous assignment. This woman recanted her story. I was never prosecuted for this offense, but since I had made the bad choice of smoking the marijuana, I now had sabotaged my career.  I deeply regret the choice I made, and would take it all back if I could. I separated from the Army on March 03, 2008, and returned to my family home in Whiteriver, Arizona, on the White Mountain Apache reservation. I have a good job with the tribe, and am planning on getting a college degree.  I will make something of my life, even though I made a very bad choice in a moment of fear and hopelessness from facing these untrue charges.  I respectfully appeal to the board to grant favorable consideration and compassion at my request. I served honorably in Iraq as a combat engineer, facing enemy fire with valor and bravery. I acknowledge that I allowed my Army values to falter, and will strive to live the rest of my life adhering to them.”

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: 080125
Discharge Received: 			   Date: 080301   Chapter: 14-12c(2)    AR: 635-200
Reason: Misconduct (Drug Abuse)	   RE:     SPD: JKK   Unit/Location: B Co, TF 47, 2d BCT, Baumholder, Germany 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 070822, wrongfully used marijuana (070121-070220), wrongfully committed an indecent act with PFC M by engaging in sexual intercourse with her in front of third parties (070115), wrongfully had sexual intercourse with a woman not his wife (070115), reduction to E-1, forfeiture of $893.00 per month for two months, 45 days of extra duty and 45 days of suspended restriction (FG)

070921, the suspended sentence of 45 days of restriction was vacated for failure to report to his designated place of duty

070925, failed to report (070909), disobeyed a lawful order from a commissioned officer two times (070908, 070909), 45 days of extra duty and restriction (FG)

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  25
Current ENL Date: 050628    Current ENL Term: 3 Years  19 weeks
Current ENL Service: 	02 Yrs, 08 Mos, 04 Days ?????
Total Service:  		02 Yrs, 08 Mos, 04 Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 62B10/Construction Equipm Rpr   GT: 101   EDU: HS Grad   Overseas: GM, SWA   Combat: Iraq (060117-061117)
Decorations/Awards: ARCOM, NDSM, ICM, GWOTSM, ASR, OSR-2

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 25 January 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason of misconduct—commission of a serious offense for wrongfully using marijuana (070121-070220); wrongfully committing an indecent act (070115) and having sexual intercourse with PFC M, a woman not his wife; and disobeying a lawful order from a commissioned officer on two occasions (070908, 070909), with a general, under honorable conditions discharge.  He was advised of his rights.
         
       On 30 January 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement on his 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 a general, under honorable conditions discharge.
       
       On 20 February 2008, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

       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 issues, and the 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.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a Soldier.  The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, he knowingly risked a military career and diminished the quality of his service below that meriting a fully honorable discharge.  
       
       The applicant contends that he was unfairly discharged as a result of an unsubstantiated rape charge that was not true, that he served well in Iraq and is looking for the benefits of the GI Bill to go to college.  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 two Articles 15 and negative counseling statements justify a pattern of serious misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence in support of his request for an upgrade of his discharge.  The applicant was discharged for committing an indecent act, having sex with a woman not his wife, wrongfully using illegal drugs, and for disobeying lawful orders.   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.  
       
       Further, the analyst acknowledges the applicant's in service accomplishments as stated in his application which included his combat service.  However, the analyst did not find the said issue sufficiently mitigating to warrant an upgrade of the discharge under review.  
       
       Finally, the analyst noted the applicant's issue about his desire to go to college and use the benefits of the GI Bill.  However, 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.
       
       In view of the foregoing, the analyst determined that the applicant’s 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: 13 July 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: Yes

Witnesses/Observers: NA 

Exhibits Submitted: 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:




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 AR20120004532
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