Applicant Name:  ?????

Application Receipt Date: 2011/12/22	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states: "I signed the chapter 10 agreement with the understanding i would be allowed to appeal to the post general for a discharge upgrade, the forms which was made out to the post general i beleave never made it to him, when i learned that the forms have not reached the general i requested to change my chap 10 status and undergo a trial by court martial, i did not know the flashlights that i bought off another soldier were stolen, and when i learned they were i replaced them and gave them to my unit commander i be leave the evidence on my behalf  was not considered, i at the time was also under going a medical evaluation board pending a medical discharge, i also beleave this was not taken into consideration, nor my standing as a veteran, or the fact i have had no bad conduct prior to this incident. it is my firm beleif that i was discharged unlawfully and i am appealing to an upgrade of discharge status."

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: 101110
Discharge Received: 			   Date: 101220   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: Rear D, 6/4th Cav, 3d BCT, Fort Knox, KY 

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:  22
Current ENL Date: 061026    Current ENL Term: 04 Years  18 Weeks
Current ENL Service: 	04 Yrs, 01  Mos, 25  Days ?????
Total Service:  		04 Yrs, 01  Mos, 25  Days ?????
Previous Discharges: 	None
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 11C10/Indirect Fire Infantryman   GT: 105   EDU: HS Grad   Overseas: Southwest Asia   Combat: Afghanistan (080703-090624)
Decorations/Awards: ARCOM, AAM, NDSM, ACM-w/CS, GWOTSM, ASR, OSR, NATOMDL, CIB

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None Listed





VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 2 November 2010, the applicant was charged with selling military property a value of about $350.00 between (100715 and 100915), stealing property of the United States a value of about $350.00 x 2 between (100715 and 100915), wrongfully buying stolen property of the United States a value of about $350.00 x 2 between (100715 and 100915).
       
       On 9 November 2010, 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 submitted 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 22 November 2010, 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.
       
       The applicant's record contains a Military Police Report, dated 1 October 2010.

       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 which 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 the applicant was aware of it prior to requesting discharge.  
       
       
       
       
       
       
       
       
       
       
       
       The applicant contends that the documents he submitted to the separation authority were not received by him, that he did not know the flashlights that he bought were stolen property, and that at the time of discharge he was pending a medical evaluation board.  The analyst noted the applicant's contentions; 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 his contentions.  There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that all facts were not considered in his discharge process or that he was unjustly discharged.  The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence in support of his request for an upgrade of his discharge.   
       
       The applicant also contends that at the time of discharge he was pending a medical discharge.  The noted the applicant was receiving medical treatment for Post Traumatic Stress Disorder and had been refered for evaluation for Traumatic Brain Injury.  However, there is no evidence of record and the applicant has submitted no probative medical evidence that he had a medical problem which rendered him disqualified for further military service and that he was not able to perform his duties, with either medical limitation or medication.  
       
       Furthermore, the analyst determined that Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition like a personality or adjustment disorder solely to spare a Soldier who may have committed serious acts of misconduct.  
       
       In view of the foregoing, 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: 30 May 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: Online application, Memorandum, dated 9 November 2010 (2), Discharge Orders, dated             7 December 2010, Receipts, Enlisted Record Brief, DD Form 214 for the period of service under review.

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: 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 AR20110025013
______________________________________________________________________________


Page 4 of 4 pages