Applicant Name:  ?????

Application Receipt Date: 2011/10/14	Prior Review:     Prior Review Date: 100908, denied

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states: "I believe my discharge should be changed because I feel that this is hindering my employment in law enforcement. There is information I withheld last time I petitioned for a change in my discharge. I withheld information that I was raped by a fellow soldier. I susbsequently found out after I went AWOL that I was pregnant due to the me getting raped. I was also having problems at home before this rape occured. I try asking my sargeants if I could take a leave of absence for a week or two to get my affairs in order. They continually denied me. But there were other female soliders that were allowed to go home to take care of their affairs. After being raped I could not bear to be there knowing what had happened to me and needed to get out of there. I was afraid to tell anyone about what had happened to me out of fear of retailation and humilation. I also did not want my family to know. I have since realized the seriousness of my rape and continue to bear that cross that I had a miscarriage due to my rape. I was young, naive and very confused at this time in my life. I am thirty years old and I do not think I should have to keep this to myself anymore or have to be punished by some thing that was not soley my fault for deserting my post. I have realized that desertion was a mistake but I did not know what to do. I felt alone and trapped."

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: 020211
Discharge Received: 			   Date: 020227   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: A Co, 244th QM Bn, Fort Lee, VA 

Time Lost: 61 days, AWOL (010714-010913), mode of return unknown.

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:  19
Current ENL Date: IADT 010223    Current ENL Term: NIF Years  ?????
Current ENL Service: 	00 Yrs, 10Mos, 03Days Includes 156 days of excess leave (010925-020227).
Total Service:  		00 Yrs, 10Mos, 10Days ?????
Previous Discharges: 	USAR-010216-010222/NA
                                       (Concurrent Service)
Highest Grade: E-2		Performance Ratings Available: Yes    No 
MOS: None   GT: NIF   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: None

V.  Post-Discharge Activity
City, State:  Reading, PA
Post Service Accomplishments: The applicant states that she is now in college getting her bachelor's degree in Criminal Justice.


VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 24 September 2001, the applicant was charged with being AWOL (010714-010914). 
       
       On 24 September 2001, 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 her request, the applicant admitted guilt to the offense, or a lesser-included offense.
       
       Further, the applicant indicated that she understood that she 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 her own behalf.  The unit commander recommended approval of an under other than honorable conditions discharge.  
       
       On 15 February 2002, the separation authority approved the Chapter 10 request 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 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 documents, and the issues she submitted, the analyst found no mitigating factors that 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 that the applicant was aware of that prior to requesting discharge.
       
       The applicant contends that she went AWOL because she had been raped by a fellow Soldier, was denied leave and was naïve and confused.  However, 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 the issue.  There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that she was the victim of such serious crime.  The applicant was absent without leave for 61 days and upon her return she was afforded to opportunity to consult with an attorney and to make a statement that would explain her misconduct or reason for going AWOL.  However, the record shows that she made no such effort.  The applicant’s statements alone do not overcome the government’s presumption of regularity and she has not provided any documentation or further evidence in support of her request for an upgrade of her discharge. 
       
       Moreover, the analyst found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 
       
       Further, 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", 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.
       
       The applicant contends that she was young, naïve, and confused at the time; however, the applicant met entrance qualification standards to include age.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  She had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review.
       
       The analyst also noted the applicant's issue about her employment; however, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.
       
       In view of the foregoing, 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: 12 March 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

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, hearing her testimony 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: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

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 AR20110020588
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