Application Receipt Date: 070410 Prior Review Prior Review Date: None I. Applicant Request Request: Upgrade Reason Change RE Code Change Issues: See applicant's attached DD Form 293. II. Were Proper Discharge and Separation Authority procedures followed? Yes No Tender Offer: ????? See Attachments: Legal Medical Minority Opinion Exhibits III. Original Character of Discharge Unit CDR Recommended Discharge: Date: NIF Discharge Received: Date: 050406 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: Headquarters and Headquarters Service Battery, 1st Battalion, 38th Field Artillery, Camp Stanley, APO AP 96257 Time Lost: None Article 15s (Charges/Dates/Punishment): None Court-Martials (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record DOB: 830209 Current ENL Date: 040715 Current ENL Term: 03 Years (The applicant's DD Form 214 Item 12a "Date Entered AD This Period" incorrectly shows date as: yr 2003, mo 12, day 06, should read yr 2004, mo 07, day 15, information is based on applicant's enlistment contract dated (040715)). Current ENL Service: 00 Yrs, 08Mos, 22Days ????? Total Service: 02 Yrs, 00Mos, 23Days (The applicant's record shows that he had only one prior period of service from (030314) to (040714), based on this information items 12e "Total Prior Inactive Service" on the applicant's DD Form 214 is incorrect, should read yr 01, mon 04, day 01) Previous Discharges: USAR-030314-040714/NA Highest Grade: E3 Performance Ratings Available: Yes No MOS: 25B10 (Information Technology Specialist) GT: NIF EDU: 2 yrs Coll Overseas: Korea Combat: None Decorations/Awards: NDSM, GWOTSM, KDSM, ASR V. Post-Discharge Activity Home of Record: Current Address: Post Service Accomplishments: None Listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 14 February 2005, the applicant was charged with willfully disobeying a superior commissioned officer (CPT) on or about 24 September 2004, and for forcible sodomy with another Soldier (SPC). On 10 March 2005, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense. Further, the applicant indicated that he understood that he could receive a under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits. The applicant did submit a statement in his own behalf. However, it is not part of the available record. The record is void of the unit commander's recommendation for discharge action and the analyst presumed Government Regularity in the discharge process. The intermediate and senior intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with a under other than honorable conditions discharge. On 25 March 2005, the separation authority approved the discharge with a under other than honorable conditions discharge. The applicant was to be reduced to private/E1. b. Legal Basis for Separation: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. Army policy states that although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s military records, and the issue he submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge. The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. The applicant consulted with defense counsel, and voluntarily in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ. The analyst noted that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It is also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge. Furthermore, eligibility for veteran's benefits to include educational benefits under the Montgomery GI Bill does not fall within the purview of this Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Additionally, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. Therefore, the reason for discharge and the characterization of service remains both proper and equitable. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 22 August 2007 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: NA Witnesses/Observers: NA Exhibits Submitted: NA VIII. Board Decision The discharge was: Proper Improper Equitable Inequitable The characterization of service was: Proper Improper Equitable Inequitable The narrative reasons were: Equitable Inequitable DRB voting record: Change 0 No change 5 - Character Change 0 No change 5 - Reason (Board member names available upon request) IX. 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. Case report reviewed and verified by: Eric S. Moore, Examiner X. Board Action Directed No Change 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 and Date Approval Authority: MARK E. COLLINS Colonel, U.S. Army President, Army Discharge Review Board Official: CHRISTINE U. MARTINSON DATE: 29 August 2007 Lieutenant Colonel, U.S. Army Chief, Secretary Recorder ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20070005183 Applicant Name: Mr. ______________________________________________________________________ Page 4 of 4 pages