Applicant Name: ????? Application Receipt Date: 2009/08/27 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states: "1. I wish to rejoin another branch of military or government agency. 2. The civil conviction I got was not malicious or violent and I want to try to rebuild my life and move past my mistakes." 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: NIF Discharge Received: Date: 070320 Chapter: 14-5 AR: 635-200 Reason: Misconduct (Civil Conviction) RE: SPD: JKB Unit/Location: C Co, 447th Sig Bde, Fort Gordon, GA Time Lost: Confinement civil authority for 236 days (060131-060923) as a result of civil conviction (060614). 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: 050726 Current ENL Term: 04 Years ????? Current ENL Service: 01 Yrs, 00Mos, 02Days ????? Total Service: 01 Yrs, 00Mos, 13Days ????? Previous Discharges: USAR-050715-050725/NA Highest Grade: E1 Performance Ratings Available: Yes No MOS: None GT: 102 EDU: HS Grad Overseas: None Combat: None Decorations/Awards: None 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 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 lewd acts upon a child and oral copulation with a minor, with an under other than honorable conditions discharge. The applicant's election of rights is not contained in the available record, however, memorandum dated 1 March 2007, from the Staff Judge Advocate, Fort Gordon, GA, makes reference to the applicant who had a right to have his case heard by an administrative separation board, on 2 November 2006, he conditionally waived his right provided that he receive a discharge no less favorable than general, under honorable conditions. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge. On 28 February 2007, the applicant again consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived consideration of his case by an administrative separation board, and did not submit a statement in his own behalf. On 2 March 2007, the separation authority disapproved the applicant's initial conditional waiver (2 November 2006) and appointed an administrative separation board to consider and recommend whether the applicant should be discharged from the Army, and if so, whether the characterization of the discharge should be honorable, general, under honorable conditions, or under other than honorable conditions. On 6 March 2007, the separation authority approved the unconditional waiver (28 February 2007) request, waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of under other than 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 during the period of enlistment under review, the issues and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge. Because of the civil court conviction, the applicant diminished the quality of his service below that meriting a fully honorable discharge. 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 provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance. Furthermore, the analyst noted the applicant's issue reference rejoining another branch of the military or government agency. At the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “3.” If reenlistment is desired, the applicant should contact the local recruiter to determine eligibility to reenlist. Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. In view of the foregoing, the analyst determined that the characterization of service and reason for discharge 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: 2 July 2010 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: NA Witnesses/Observers: NA Exhibits Submitted: NA 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 XI. Certification Signature Board Vote: Approval Authority: Character - Change 0 No change 5 Reason - Change 0 No change 5 (Board member names available upon request) EDGAR J. YANGER Colonel, U.S. Army X. Board Action Directed President, Army Discharge Review Board Issue a new DD Form 214 Change Characterization to: Change Reason to: NA Other: NA RE Code: Grade Restoration: No Yes Grade: NA 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 AR20090015072 ______________________________________________________________________________ Page 1 of 3 pages