Applicant Name:  ?????

Application Receipt Date: 2011/04/14	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues:  The counsel, representing the appellant, requests for an upgrade to HD and to change the narrative reason for the discharge to "Expiration of Term of Service," based on propriety and equity.  The counsel detailed the character of the appellant's service as exemplary and a model Soldier during his tenure as a chaplain's assistant; that prior to incidents of misconduct, he had no prior history of misconduct or negative counseling; that his commendable performance during his deployment and at his October 2008 promotion board resulted in his promotion to sergeant on 1 October 2008; that his PTSD started to surface after his redeployment; and that the subsequent harassment, alcohol abuse, depression, and an end to a long-term relationship took a substantial toll on the applicant, culminating in a CID investigation incident that led to his eventual separation.  The counsel contends that although the applicant's diagnosis of PTSD does not excuse his actions, it sheds light on his behavior and is a mitigating factor.  The counsel also made reference to the numerous letters of support for the applicant; his self-authored statement enclosed with the application; and his recipient of two ARCOM within five years of service.  The counsel concluded that his client who served honorably for all but one day of his service and his actions of misconduct, when viewed in light of his past service and mental status at the time of the incident, illustrates that the behavior is uncharacteristic, and that his current UOTH discharge limits his ability to move forward both in treatment of his PTSD and professionally.  The counsel added that the applicant desires to be able to serve in the military again--allowing him to upgrade his discharge and changing the narrative reason for his discharge will allow him to to serve again.

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: 091019   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: RD, 1st Bn, 38th IN RGT, 4th Bde (SBCT), 2ID(Rear) (Provisional), Fort Lewis, WA 

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: 090309    Current ENL Term: 6 Years  (2nd Reenlistment)
Current ENL Service: 	00 Yrs, 07 Mos, 10 Days ?????
Total Service:  		05 Yrs, 04 Mos, 25 Days ?????
Previous Discharges: 	RA - 040525-090308 / HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 56M / Chaplain Assistant   GT: 100   EDU: HS Grad   Overseas: Iraq   Combat: Iraq (070520-080602)
Decorations/Awards: ARCOMx2; AGCM; NDSM; GWOTSM; ICM-CS; NCOPDR; ASR; and OSR

V.  Post-Discharge Activity
City, State:  Montgomery, AL
Post Service Accomplishments: Team Champion of the Month 2010 with the Holiday Inn Express, Montgomery, AL

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 30 July 2009, the applicant was charged with failure to report to his appointed place of duty at the time prescribed (090317); AWOL (090413-090415); disobeying a superior commissioned officer by leaving the limits of Fort Lewis without authorization (090317); engaging in sexual contact with an enlisted Soldier without the Soldier's permission (090315); and unlawfully kissing an enlisted Soldier on the neck with his lips (090316).  
       
       On 24 September 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 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 submitted a statement in his own behalf.  The unit commander and intermediate commander recommended approval of an under other than honorable conditions discharge.  
       
       On 1 October 2009, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions.  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 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 analyst acknowledges the applicant's successful transition to civilian life and noted the diagnosis of PTSD outlined in the documents with his application.  However, in review of the applicant’s entire service record, the analyst found that this medical condition did not overcome the reason for discharge and characterization of service granted.  Documentary evidence as part of the applicant's separation packet reflects that the applicant presented his plea for a general discharge to his chain of command in consideration of his outstanding service record, his personal identity struggle leading up to his misconduct, the nature of his misconduct, and presented letters of support and his mental health records.  In essence, the applicant's contentions and several of his supporting statements were previously considered.   The analyst concluded that just because the applicant suffers from PTSD does not mean he does not know the difference between right and wrong or that he did not have control over his behavior.  There are many Soldiers with the same condition who complete their service successfully.   
       
	The applicant contends that the narrative reason for his discharge should be changed to "Expiration of Term of Service."  The record shows that the applicant was separated under the provisions of Chapter 10, AR 635-200 with an under other than honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," and the separation code is "KFS."  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 and separation code, entered in block 26 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.
       
       Furthermore, 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 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: 28 October 2011         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel:  [ Redacted ]

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293 and counsel representing the applicant's "Brief in Support of Application for Discharge Upgrade" with its listed enclosures.

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 1    No change 4
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 AR20110008123
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