Application Receipt Date: 061012	

Prior Review    Prior Review Date: None

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

Issues: See applicant's 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: 060324   
Chapter: 10    AR: 635-200
Reason: In Lieu Of Trial By Court Martial
RE:     SPD: KFS
Unit/Location: HHT, 3rd Squadron, 7th Cavalry, Fort Stewart, GA 31314 

Time Lost: None

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

Court-Martials (Charges/Dates/Punishment): 040120/General Court-Martial-The applicant was found guilty of rape, on or about (030830).  He was sentenced to to reduced to PVT/E1, confined for 9 years, and a dishonorable discharge.  However, only so much of the sentence as provides for the reduction to PVT/E1 and the dishonorable discharge is approved, and except for the part of the sentence extending dishonorable discharge will be executed.  On 22 August 2005, the applicant requested discharge in lieu of trial by court-martial.  

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  790805  
Current ENL Date: 021029    Current ENL Term: 3 Years  The applicant was retained in the service 148 days for the convenience of the Government  per AR 635-200.
Current ENL Service: 03  Yrs, 04 Mos, 26 Days The applicant was placed on excess leave for 463 days from (041217-060324).
Total Service:  07  Yrs, 07 Mos, 26 Days ?????
Previous Discharges: RA-980728-010727/HD
                                      ARNG-010728-021028/NA
Highest Grade: E4
Performance Ratings Available: Yes    No 
MOS: 19K10 M1 Armor Crewman   GT: 95   EDU: HS Letter   Overseas: Korea   Combat: None/ The applicants states he served in Iraq, however, the available records does not validate his claim.
Decorations/Awards: AAM (2), NDSM (2), KDSM, ASR, OSR, PUC (USA/USAF), 
V.  Post-Discharge Activity
Home of Record: 
Current Address: 
Post Service Accomplishments: The applicant states he serves as a Deacon at his church, The Wings Of Love Worship Center.  

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      The applicant's DD Form 458 (Charge Sheet), is not a part of the available record and the analyst presumed Government regularity in the discharge process.  However, the evidence of record shows that on 17 June 2004, General Court-Martial order number 17 indicates that the applicant pleaded guilty to rape.  On 22 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 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 applicant's chain of command recommended approval of the request for discharge under the provisions Chapter 10, AR 635-200 in lieu of trial by court-martial, with an under other than honorable conditions discharge.  On 6 September 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. 
      
      

      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 noted the applicant's issue; however; even though a single incident, the analyst concluded that the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  Having examined all the circumstances, the analyst determined that the applicant's single incident of misconduct did indeed adversely affect the quality of service, brings discredit on the Army, and was prejudicial to good order and discipline.  This single incident of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge or general, under honorable conditions discharge.  The analyst determined that the reason for discharge and the characterization of service were both proper and equitable.
      
      
      
      
      

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 15 November 2007              
Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

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 and 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: 27 November 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20060014499

Applicant Name:  Mr.        
______________________________________________________________________


Page 6 of 6 pages