Applicant Name:  ?????

Application Receipt Date: 2011/07/18	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he requests his discharge be upgraded from under other than honorable conditions to general, under honorable conditions. The applicant states that during his six years of service, including numerous deployments, the courts-martial conviction was the only adverse action he received.

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: On 050831, the unit commander recommended Chapter 10 discharge in lieu of trial by court-martial be disapproved.
Discharge Received: 			   Date: 051110   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial By Court-Martial	   RE:     SPD: KFS   Unit/Location: PCF SPEC PROC CO TC, Fort Knox, KY  

Time Lost: 78 days, military confinement (050816-051102)

Article 15s (Charges/Dates/Punishment): NA

Courts-Martial (Charges/Dates/Punishment): 050816, creating an official record with intent to deceive (on or about 040901), signing an official document with intent to deceive (on or about 041027), making an official statement with intent to deceive (on or about 041102), theft of military property greater than $500 (on or about 041115); confinement for five months and reduced in grade to E-4/SPC (SPCM).

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 021012    Current ENL Term: 5 Years  ?????
Current ENL Service: 	2 Yrs, 10Mos, 10Days ?????
Total Service:  		6 Yrs, 0Mos, 26Days ?????
Previous Discharges: 	RA 990728 - 021011/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 11B10/Infantryman   GT: 105   EDU: HS   Overseas: Yes (Not specified in file)   Combat: IRAQ (Dates not available)
Decorations/Awards: NDSM; ASR; GWTSM; ARCOM; GCM

V.  Post-Discharge Activity
City, State:  Salt Lake City, UT
Post Service Accomplishments: Director of VA Financing, Peoples Mortgage

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on or about 1 September 2004, the applicant was charged with creating an official record with intent to deceive; that on or about 27 October 2004, the applicant was charged with signing an official document with intent to deceive, that on or about 2 November 2004, the applicant was charged with making an official statement with intent to deceive; and that on or about 15 November 2004, the applicant was charged with theft of military property greater than $500. 
       
       On 16 August 2005, the applicant was tried by special court-martial and found guilty of the charges and sentenced to confinement for five months and reduction in pay grade from E-5/SGT to E-4/SPC.  The applicant was transferred to the personnel control facility on 16 August 2005.
       
       On 18 August 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 acknowledged being convicted of the charges and that he was able to request Chapter 10 discharge because the type of court-martial to which his case was referred could have adjudged a bad conduct discharge. The applicant further indicated his understanding that he may receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  On the same day, the applicant's defense counsel wrote a memoramdum in support of the applicant's request. 
       
       The evidence shows that on 31 August 2005, the applicant's company commander, squadron commander and brigade commander all recommended the request for Chapter 10 discharge be disapproved. 
       
       On 2 November 2005, the GCMCA approved the court-martial findings of guilty and ordered only the portion of the sentence that included reduction in pay grade to E-4/SPC and 78 days confinement served to be approved and executed.  In addition, the GCMCA approved the applicant's request for discharge in lieu of the court-martial and ordered the applicant reduced to pay grade E-1/PVT and discharged with service characterized as under other than honorable conditions. 

       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:  
       The applicant requests his discharge be upgraded from under other than honorable conditions to general, under honorable conditions. The applicant states that during his six years of service, including numerous deployments, the court-martial conviction was the only adverse action he received. He also notes his post-service employment where he assists other veterans with obtaining home mortgages.
       
       After a careful review of all the applicant’s military records, and documents submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge.  However, the analyst does find the characterization of the discharge improper.  
       
       On 16 August 2005, the applicant was found guilty of the charged offenses and sentenced to confinement for five months and reduction in grade to E-4. There was no punitive discharge adjudged in the sentence.
       
       The applicant requested discharge, post-trial in lieu of the court-martial sentence, under the provisions of Chapter 10, AR 635-200. The request was approved on 5 November 2005. In his memorandum, dated 5 November 2005, the GCMCA ordered that the applicant be discharged under the provisions of Chapter 10, AR 635-200, reduced to the lowest enlisted grade, and that the character of service be classified as under other than honorable conditions.
       
       Notwithstanding the GCMCA order, AR 635-200, paragraph 10-8a, states: "A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by courts-martial.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. (See chap 3, sec II.)." Chapter 3, section II states in paragraph 3-8e, "When the sole basis for separation is a serious offense that resulted in a conviction by a court-martial authorized to impose, but not imposing, a punitive discharge, the Soldier's service may not be characterized as under other than honorable conditions unless such characterization is approved by HQDA (AHRC-EPR-F)."
       
       Accordingly, the analyst recommends to the Board that the applicant’s characterization of service be upgraded to general, under honorable conditions.  However, the reason for discharge remains both proper and equitable.  This action entails a restoration of grade to E-4/SPC. 

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 15 February 2012         Location: Washington DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: N/A 

Exhibits Submitted: Self-authored statement dated 13 July 2011; Six letters of support, various dates.

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 characterization of service is improper.  The applicant was sentenced by special court-martial that had the authority to impose, but did not impose, a punitive discharge. Notwithstanding the propriety of the discharge, the Board determined that in accordance with AR 635-200, Section II, paragraph 3-8e, the least favorable characterization of service that the GCMCA could have approved was  general, under honorable conditions.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  This action entails restoration of grade to E-4/SPC.
        
IX.  Board Decision						
Board Vote:
Character - Change 5    No change 0
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: N/A
RE Code: 
Grade Restoration:   No   Yes   Grade: E-4/SPC













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 AR20110015044
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