Applicant Name: ????? Application Receipt Date: 2011/10/26 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states through counsel , in effect, that he requests an upgrade of his discharge to general, under honorable conditions or fully honorable, and a change to the narrative reason for separation. The applicant contends he had an exemplary career. He further contends being tried on two separate occasions and the charges were dismissed; he was charged a third time and he submitted a request for discharge. The applicant desires to continue to serve his country. 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: NIF Date: NIF Discharge Received: Date: 090313 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: A Co, 3-3rd Special Forces Group (ABN), Fort Bragg, NC 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: 31 Current ENL Date: 040622 Current ENL Term: Indef Years ????? Current ENL Service: 04 Yrs, 08 Mos, 22 Days ????? Total Service: 16 Yrs, 11 Mos, 21 Days ????? Previous Discharges: RA-920324-961211/HD RA-961212-981213/HD RA-981214-040621/HD Highest Grade: E-6 Performance Ratings Available: Yes No MOS: 18B1P Special Forces Weapons Sergeant/37F1P Psychological Operation Spec/75H1P Personnel Service Spec GT: 112 EDU: 13 Years Overseas: Germany/Southwest Asia Combat: Iraq (030101-030601), (030801-031001); Afghanistan (060801-070227) Decorations/Awards: BSM, ARCOM-W/"V" DEV, ARCOM-5, AAM-3, AGCM-5, NDSM, AFEM, ICM-W/CS, GWOTEM, GWOTSM, AFSM, NCOPDR-2, ASR, OSR-2, NATO MDL, JMUA, CIB, CAB, SF TAB V. Post-Discharge Activity City, State: Post Service Accomplishments: The applicant stated he has worked on several government contracts. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 5 April 2008, the applicant was charged with intent to deceive, made a false official statement to Special Agent DR (070608); take indecent liberties with AM, a female under 16 years of age, not his wife, by playing with his uncovered penis while standing over her as she lay in bed, with intent to arouse his sexual desires (050801-060801); commit an indecent act upon the body of AM, a female under 16 years of age, not the wife, by rubbing her vagina with his fingers, with intent to appeal to his lust (030501-040630); and commit an indecent act upon the body of AM, a female under 16 years of age, not the wife, by rubbing his erect penis against her clothed vagina while Ms. M was sitting in his lap, with intent to arouse his sexual desires (030501-040630). On 14 January 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 he understood he could receive an under other than honorable conditions discharge and the discharge would have a significant effect on eligibility for veteran’s benefits. The applicant did not indicate if a statement was submitted in his own behalf. The applicant's chain of command recommended trial by a General Court-Martial. On 14 January 2009, the separation authority approved the Chapter 10 request and directed 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 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. The evidence of record indicates that 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. By the misconduct, the applicant diminished the quality of his service below that meriting a general, under honorable conditions or a fully honorable discharge. The applicant requested a change to the narrative reason for separation. The narrative reason for separation is governed by specific directives. The applicant was discharged under the provisions of Chapter 10, AR 635-200. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," the separation code is "KFS," and the reentry code is "RE 4." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28, separation code, entered in block 26, and RE Code, entered in block 27 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. The applicant contends he had an exemplary career. Careful consideration was given to his entire service record, to include his prior and post active service; however, the analyst determined that this service was not sufficiently meritorious to overcome the reason for discharge and characterization of service granted. The applicant further contends being tried on two separate occasions and the charges were dismissed; he was charged a third time and he submitted a request for discharge. 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 contention. There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that he was tried on two prevous court-martials. Further, the analyst found no evidence of arbitrary or capricious actions by the command. The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applican desires to continue to serve his country. At the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.” An RE code of “4” cannot be waived and the applicant is no longer eligible for reenlistment. 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: 20 April 2012 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: Mr. William E. Cassara Box 2688 Evans, GA 30809 Witnesses/Observers: NA Exhibits Submitted: DD Form 293, dated (11092); Attorney's Brief in Support of DD Form 293, consisting of five (5) pages, undated; two (2) Sworn Statements, Applicant's Spouse, five (5) pages, dated (070608), six (6) pages, dated (070614); DA Form 2823 (Sworn Statement), five (5) pages, dated (070608); and a Sworn Statement, four (4) pages, dated (070613). 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: No Change Other: NA RE Code: Grade Restoration: No Yes Grade: None XI. Certification Signature Approval Authority: EDGAR J. YANGER 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 AR20110021637 ______________________________________________________________________________ Page 1 of 4 pages