Application Receipt Date: 070410	

Prior Review    Prior Review Date: None

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

Issues: See applicant's attached DD Form 293.

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: 050406   
Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial
RE:     SPD: KFS
Unit/Location: Headquarters and Headquarters Service Battery, 1st Battalion, 38th Field Artillery, Camp Stanley, APO AP 96257 

Time Lost: None

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

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  830209  
Current ENL Date: 040715    Current ENL Term: 03 Years  (The applicant's DD Form 214 Item 12a "Date Entered AD This Period" incorrectly shows date as: yr 2003, mo 12, day 06, should read yr 2004, mo 07, day 15, information is based on applicant's enlistment contract dated (040715)).
Current ENL Service: 00 Yrs, 08Mos, 22Days ?????
Total Service:  02 Yrs, 00Mos, 23Days (The applicant's record shows that he had only one prior period of service from (030314) to (040714), based on this information items 12e "Total Prior Inactive Service" on the applicant's DD Form 214 is incorrect, should read yr 01, mon 04, day 01)
Previous Discharges: USAR-030314-040714/NA
Highest Grade: E3
Performance Ratings Available: Yes    No 
MOS: 25B10 (Information Technology Specialist)   GT: NIF   EDU: 2 yrs Coll   Overseas: Korea   Combat: None
Decorations/Awards: NDSM, GWOTSM, KDSM, ASR
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 14 February 2005, the applicant was charged with willfully disobeying a superior commissioned officer (CPT) on or about 24 September 2004, and for forcible sodomy with another Soldier (SPC).  On 10 March 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 a under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The applicant did submit a statement in his own behalf.  However, it is not part of the available record.  The record is void of the unit commander's recommendation for discharge action and the analyst presumed Government Regularity in the discharge process.  The intermediate and senior intermediate commanders reviewed the proposed discharge action and recommended approval of the separation action with a under other than honorable conditions discharge.  On 25 March 2005, the separation authority approved the discharge with a under other than honorable conditions discharge.  The applicant was to be reduced to private/E1.
      
      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, and the issue he 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.  Furthermore, eligibility for veteran's benefits to include educational benefits under the Montgomery GI Bill does not fall within the purview of this Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.  Additionally, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  Therefore, 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: 22 August 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: Eric S. Moore, Examiner									        
X.  Board Action Directed
No Change 
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 and Date
Approval Authority: 

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

Official: 

CHRISTINE U. MARTINSON			DATE: 29 August 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20070005183

Applicant Name:  Mr.        
______________________________________________________________________


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