Applicant Name: ????? Application Receipt Date: 2010/02/25 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he believes he qualifies for education benefits based upon his first period of service, which is listed in the remarks section (18) of his DD Form 214. 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: 090428 Discharge Received: Date: 090521 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: 104th Transportation Company, 13th Combat Sustainment Support Battalion, 3rd Brigade Combat Team, 3rd Infantry Division, Fort Benning, GA 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: 24 Current ENL Date: Reenl/070406 Current ENL Term: 6 Years ????? Current ENL Service: 2 Yrs, 1 Mos, 16 Days ????? Total Service: 4 Yrs, 2 Mos, 16 Days ????? Previous Discharges: RA 050303-060801/HD RA 060802-070405/HD Highest Grade: E-4 Performance Ratings Available: Yes No MOS: 88M10 Motor Transport Oper GT: 94 EDU: GED Cert Overseas: Southwest Asia Combat: Iraq (061031-080130) Decorations/Awards: ARCOM, AAM, NDSM, GWOTSM, ICMDLw/CS, ASR, OSR, CAB V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: None submitted by the applicant. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 16 April 2009, the applicant was charged with five specifications of child pornography on or about (070928), (070928), (070928), (070928), (070928). On 27 April 2009, 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 an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits. The applicant did not submit a statement in his own behalf. The unit commander and intermediate commander's recommended approval of an under other than honorable conditions discharge. On 14 May 2009, the separation authority approved the discharge with an under other than honorable conditions discharge. The applicant was to be reduced to the lowest enlisted rank. 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, under honorable conditions 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, 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 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 the applicant was aware of it prior to requesting discharge. The analyst noted the applicant's issue that he believes he qualify's for education benefits based upon his first period of service. Eligibility for veteran's benefits to include educational benefits under the 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: 1 December 2010 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 293 dated 6 February 2010, self authored statement dated 6 February 2010, DD Form 214 for the period of service ending 21 May 2009, copy of his Honorable Discharge Certificate dated 1 August 2006, Oath of Reenlistment dated 2 August 2006. VIII. Board Discussion, Determination, and Recommendation Notwithstanding the propriety of the applicant's discharge, the Board found that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as “3.” In view of the error, the Board voted to administratively change block 27, reentry code to “4." as approved by the separation authority. Except for the foregoing modification, the Board determined that the discharge was both proper and equitable and voted not to change it 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: No Change Other: The Board voted to administratively change block 27, reentry code to “4." RE Code: Grade Restoration: No Yes Grade: No Change 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 AR20100009399 ______________________________________________________________________________ Page 1 of 3 pages