Applicant Name:
Application Receipt Date: 2007/11/02 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: The Applicant states that his actions should have been handled with an Article 15 and that he was set up by his accuser who has filed the same or similar charges against several other soldiers.
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: 061213
Discharge Received: Date: 070131 Chapter: 10 AR: 635-200
Reason: In Lieu of Trial By Court-Martial RE: SPD: KFS Unit/Location: 119th Transporation Co, 11th Trans Bn, Fort Eustis, VA
Time Lost: None
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): None
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 31
Current ENL Date: 050922 Current ENL Term: 4 Years ?????
Current ENL Service: 01 Yrs, 04Mos, 10Days ?????
Total Service: 05 Yrs, 10Mos, 23Days ?????
Previous Discharges: RA 010308-030622/HD
RA 030623-050921/HD
Highest Grade: E-5 Performance Ratings Available: Yes No
MOS: 88H Cargo Spc GT: 111 EDU: GED Overseas: SWA Combat: Kuwait (030115-030615), Iraq (040214-050214)
Decorations/Awards: ARCOM-2, GCM, NDSM, GWOTEM, GWOTSM, ICM, ASR, NCOPDR
V. Post-Discharge Activity
City, State: Viriginia Beach, VA
Post Service Accomplishments: None listed
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 13 December 2006, the applicant was charged with violating a lawful regulation by wrongfully having sex with a subordinate soldier (020513), rape of subordinate soldier (051221), providing alcohol to a person under 21 years old (051221), wrongfully having sex with a woman not his wife (051221), and indecent acts (051221). On 19 January 2007, 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 veterans benefits. The applicant did not submit a statement in his own behalf. The unit and intermediate commanders recommendations as to the characterization of the applicants discharge are not contained in the available record. On 26 January 2007, the separation authority approved the discharge with a characterization of service of under other than honorable conditions. 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 individuals 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 applicants 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 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. 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: 26 September 2008 Location: Washington, D.C.
Did the Applicant Testify? Yes No
Counsel: NA
Witnesses/Observers: NA
Exhibits Submitted: NA
VIII. Board Discussion, Determination, and Recommendation
After carefully examining the applicants record of service during the period of enlistment under review and considering the analysts recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief.
IX. Board Decision
XI. Certification Signature
Board Vote: Approval Authority:
Character - Change 0 No change 5
Reason - Change 0 No change 5
(Board member names available upon request)
EDGAR J. YANGER
Issue a new DD Form 214 Colonel, U.S. Army
Change Characterization to: President, Army Discharge Review Board
Change Reason to:
Other: None
RE Code:
Grade Restoration: No Yes Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE
Case Number AR20070015595
______________________________________________________________________________
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