Application Receipt Date: 060822	

Prior Review    Prior Review Date: None

I.  Applicant Request
Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and attached documents.

II.  Were Proper Discharge and Separation Authority procedures followed?  
Yes    No        Tender Offer:   ?????

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Original Character of Discharge
Unit CDR Recommended Discharge:    Date: NIF
Discharge Received:     Date: 050513   
Chapter: 10    AR: 635-200
Reason: In Lieu Of Trial By Court-Martial
RE:     SPD: KFS
Unit/Location: HHD, Henry A. Caro NCO Academy, Fort Benning, GA 31905 

Time Lost: AWOL-687 days, from (010924-030815), apprehended by civil authorities in Fayetteville, NC on (030807), and transferred to Fort Knox, KY. Item 25 on DD Form 214, dates of time lost during this period is incorrect, should read (010924-030815), see DA Form 4187. 

Article 15s (Charges/Dates/Punishment): None

Court-Martials (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  810624  
Current ENL Date: 041029    Current ENL Term: 6 Years  ?????
Current ENL Service: 00  Yrs, 06 Mos, 15 Days ?????
Total Service:  03  Yrs, 02 Mos, 06 Days Item 12c on DD Form 214, net active service this period is incorrect, should read 03 Yrs, 02 Mos, 06 Days.
Previous Discharges: RA-000418-041028/HD
Highest Grade: E4
Performance Ratings Available: Yes    No 
MOS: 92Y1P Unit Supply Spec   GT: 87   EDU: HS Letter   Overseas: None   Combat: None
Decorations/Awards: ASR, GWOTSM
V.  Post-Discharge Activity
Home of Record: 
Current Address: 
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      The evidence of record shows that on 10 December 2004, the applicant was charged with attempt to indecently assault a woman not his wife, by pushing her down on the bed and trying to force her legs apart in an attempt to penetrate her, with intent to gratify his sexual desires, (21 September 2004), without authority and with intent to remain away there from permanently, absented himself from his unit from, (24 September 2001-15 August 2003), and rape, (21 September 2004).  On 3 May 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 admitted guilt to the offense, or a lesser included offense.  Further, the applicant indicated that 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 did not submit a statement in his own behalf.  The record is void of the unit commander's recommendation for approval of an under other than honorable conditions discharge and the analyst presumed Government regularity in the discharge process.  On 5 May 2005, the separation authority approved the discharge with an under other than honorable conditions discharge.  The applicant was to be reduced to the lowest enlisted rank.
      
      The applicant has an Article 32 Investigation dated 19 January 2005, in his Official Military Personnel File.

      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 careful review of all the applicant's military records during the period of enlistment under review, the issue and documents he submitted, the analyst recommends that the applicant's request for an upgrade of his characterization of service be denied.  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 offense under UCMJ.  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 this prior to requesting discharge.  The analyst determined that the reason for discharge and the characterization of service remains both proper and equitable. 

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 12 September 2007              
Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: N 

Exhibits Submitted: NA




VIII.  Board Decision
The discharge was:			Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The characterization of service was:   Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The narrative reasons were: 	       	Equitable	 	Inequitable	

DRB voting record:  		      Change 0    No change 5   - Character
		 			      Change 0    No change 5   - Reason
					      (Board member names available upon request)

IX.  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, voted to deny relief.



















 

Case report reviewed and verified by: Mr. Kenneth McFarley, Examiner									        
X.  Board Action Directed
No Change 
Issue a new DD Form 214  
Change Characterization to:    
Change Reason to: None
Other: NA
RE Code:  
Grade Restoration:   No   Yes  Grade: None

XI.  Certification Signature and Date
Approval Authority: 

MARK E. COLLINS
Colonel, U.S. Army
President, Army Discharge Review Board

Official: 


CHRISTINE U. MARTINSON			DATE: 24 September 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20060012095

Applicant Name:  Mr.        
______________________________________________________________________


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