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