Applicant Name:  ?????

Application Receipt Date: 2010/12/23	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states:  "My recruiter lied to me and allowed me to enlist while on probation. He told me that all my civiltan charges would be wiped clean after enlisting. My first duty station was in Germany. I left on emergency leave to take care of my wife. When i came through airport security I was arrested and went to jail in Atlanta, GA. Then to Hutchinson, KS. I couldn’t leave the country again till all this was taken care of.  My CO in Germany said if I did not show up by a certain time I would be AWOL, so I went to Fort Sill taken and was discharged. I understand I could have handled some of these things better but so too could my recruiter. I feel I was put into a bad situation and don’t feel I should be without my VA benefits."

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: 990629
Discharge Received: 			   Date: 990726   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: D Co, 1-36 IN Bn, Friedburg, GE 

Time Lost: 142 days, AWOL (980919-990207), surrendered.

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:  20
Current ENL Date: 980122    Current ENL Term: 3 Years  5 months
Current ENL Service: 	01 Yrs, 01Mos, 13Days ?????
Total Service:  		01 Yrs, 01Mos, 13Days ?????
Previous Discharges: 	None
Highest Grade: E-2		Performance Ratings Available: Yes    No 
MOS: 11M10/FV Infantryman   GT: NIF   EDU: GED   Overseas: Germany   Combat: None
Decorations/Awards: None

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 10 February 1999, the applicant was charged with being absent without leave (980919-990208).  
       
       On 11 February 1999, 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 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 submit a statement in his own behalf.  The unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  
       
       On 12 July 1999, 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, and 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 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 the applicant was aware of that prior to requesting discharge. 
       
       The applicant contends that his recruiter lied to him and allowed him to enlist while he was on probation and that he is seeking to obtain some VA benefits.  However, the applicant was discharged from the Army for going AWOL for 142 days.  If the applicant had an issue with his enlistment or his recruiter, he had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review.  Further, there is a presumption of regularity in the conduct of governmental affairs.  This presumption is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support his contention that his recruiter was aware of his probation and allowed him to enlist.  In fact, the applicant’s record indicates that he did not disclose any offenses for which he received probation.  If he had, he would have been disqualified for enlistment.  The applicant’s statement alone does not overcome the presumption of government regularity in this case and he provided no documentation or further evidence in support of his request for an upgrade his discharge.  
       
       Further, 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.
       
       Therefore, the analyst determined 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: 17 August 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: None

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 AR20100030359
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