Applicant Name:  ?????

Application Receipt Date: 2012/01/06	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states through counsel, in effect, that he requests an upgrade of his discharge to fully honorable and a change to the narrative reason for separation.  He contends that the CID Report contains no evidence the applicant viewed or possesed child pornography.  He further contends the discharge he received is not indicative of  the sevice rendered to his country. 

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: 070801   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: D Co, 3-159th AV Regt, APO AE 09177  

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:  20
Current ENL Date: 040513    Current ENL Term: 06 Years  ?????
Current ENL Service: 	03  Yrs, 02  Mos, 19  Days ?????
Total Service:  		03  Yrs, 02  Mos, 19  Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 15R10 AH-64 Attack Helicopter Repairer   GT: 125   EDU: 13 Years   Overseas: Germany   Combat: None
Decorations/Awards: NDSM, GWOTSM, ASR, OSR

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: The applicant stated since his discharge he earned his Airframe and Power Plant certificates, completed the Continental Aircraft Engine School and worked as a mechanic.  Also, he assisted the Coast Guard during the Missouri floods, assisted the Federal Bureau of Investigation (FBI), Missouri Highway Patrol, FAA, National Transportation Safety Board (NTSB) and Transport Canada in the recovery of stolen airplane.  Currently he is employed with Air Evacuation Lifeteam Emergency Medical Services(EMS), an air ambulance company as the base mechanic for a Bell 206 Helicopter and a King Air 90 Turboprop.  Additionally, he volunteers with a local Hero program for underprivileged children, serves as the Maintenance Officer for a Flying Club and the assistant coach for soccer and t-ball.  




 

VI.  Facts, Circumstances, and Legal Basis for Separation
       a.  Facts and Circumstances:
       The applicant’s record does not contain the DD Form 458 (Charge Sheet), his request in writing for discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial, or the unit commander's documentation recommending approval of the Chapter 10 request with an under other than honorable conditions discharge, and the analyst presumed government regularity in the discharge process.  However, the record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  
       
       The DD Form 214, indicates the applicant was discharged under the provisions of Chapter 10, AR 635-200, by reason of in lieu of trial by court-martial, with a characterization of service of under other than honorable conditions.  Furthermore, the DD Form 214, shows a Separation Code of KFS (i.e., in lieu of trial by court-martial), with a reentry eligibility (RE) code of "4."   
       
       On 10 July 2007, the Staff Judge Advocated, CPT, JA, indicated in his memorandum that the applicant's chain of command recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  On 11 July 2007, 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 available military records during the period of enlistment under review, the issues and documents submitted with the application, the analyst found no mitigating factors that 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 that the applicant was aware of that prior to requesting discharge.  By the misconduct , the applicant diminished the quality of his service below that meriting a fully honorable discharge.
       
       The applicant requested a change to the narrative reason for separation to Secretarial Authority.  However, 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," the separation code is "KFS," and the reentry code is "RE 4."  
       
       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, separation code, entered in block 26, and RE Code, entered in block 27 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 the CID Report contains no evidence the applicant viewed or possesed child pornography.  The CID Report shows that it was determined that the applicant committed the offense of possession of child pornography, after two of his DVDs containing child pornography were discovered in his cd case by Soldiers of his unit.  
       
       Further, 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 contention.  There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that he did view or possess child pornography.
       
       The applicant further contends the discharge he received is not indicative of  the service rendered to his country.  Careful consideration was given to his entire service record, to include quality of his service during the initial portion of the enlistment under review, and the analyst found that this service was not sufficiently meritorious to warrant an upgrade of the discharge under review.
       
       The analyst acknowledges the applicant's successful transition to civilian life and noted the many accomplishments outlined in the document with the application.  However, in review of the applicant’s entire service record, the analyst found that these accomplishments did not overcome the reason for discharge and characterization of service granted.  
        
       The analyst determined that the applicant’s Official Military Personnel File (OMPF) does not contain all the specific documents that would indicate the reason for the separation action from the United States Army. The burden of proof remains with the applicant to provide the appropriate documents or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration.
       
       Therefore, 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: 21 May 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: yes [redacted]

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated (111215); Attorney's Brief in Support of Application for Discharge Upgrade, four (4) pages; CID Report, twenty-two (22) pages; Chapter 10, In lieu of Trial by Court-Martial Documents, four (4) pages, dated (070711); three (3) Character Statements, all undated, one statement is from the applicant's spouse.

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 1    No change 4
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: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: None

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 AR20120000495
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