Applicant Name:   

Application Receipt Date: 2008/06/18	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and attached documents submitted by the applicant

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: NIF
Discharge Received: 			   Date: 970728   Chapter: 10     AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: 64th AG Detachment, 1st PERSCOM, APO AE 

Time Lost: None

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

Courts-Martial (Charges/Dates/Punishment): 970818, GCM, Cruelty and maltreatment at or near Rhein Main Air Force Base, Germany (970202); Extortion at or near Rhein Main Air Force Base, Germany (970202); Indecent assault (2 counts) at or near Rhein Main Air Force Base, Germany (970202); Courts-Martial proceedings were terminated when the applicant requested and was granted a Chapter 10 discharge in lieu of trial by courts-martial (post trial). 

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  31
Current ENL Date: 960608    Current ENL Term: NIF Years  ?????
Current ENL Service: 	  1 Yrs, 01Mos, 21Days ?????
Total Service:  		13 Yrs, 10Mos, 28Days ?????
Previous Discharges: 	RA 830901-850307/HD
                                       RA 850308-890720/HD
                                       RA 890721-910123/HD
                                       RA 910124-920608/HD
                                       RA 920609-960607/HD 
Highest Grade: E-7		Performance Ratings Available: Yes    No 
MOS: 75H40/Personnel Service Specialist   GT: 119   EDU: HS GRAD   Overseas: Alaska, Germany, Bosnia (951227-960612)   Combat: None
Decorations/Awards: ARCOM (3), AAM (3), AGCM (4), NDSM, AFRM, NCOPDR, OSR, NM 

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: Served in the California Army National Guard (070720-080311), discharged with a GD





VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on the applicant was charged with cruelty and maltreatment, extortion, and indecent assault (2 counts) at or near Rhein Main Air Force Base, Germany (970202).  On 27 May 1997, 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 submitted a statement in his own behalf.  The unit commander recommended approval of an under other than honorable conditions discharge.  On 27 June 1997, 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 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 and documents submitted with the application, 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, the record shows that the separation authority approved the applicant's discharge under the provision of  Chapter 10, AR 635-200, in lieu of trial by court martial with an under other than honorable conditions characterization of service.  However, the evidence of record shows that someone in the separation process erroneously entered on the DD Form 214, block 24  a characterization of service of "under honorable conditions (general)."  It is this Board's policy not to change the characterization of service to a lesser degree than the one received even though substantiated in the applicant's record.  Further, the analyst noted that even though a single incident, the discrediting entry constituted a departure from the standards of conduct expected of senior non-commissioned officers 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.  The analyst having examined all the circumstances determined that the applicant's single incident of misconduct did indeed adversely affect the quality of service, brought 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 general or honorable discharge. Additionally, the analyst found no evidence of arbitrary or capricious actions by the command.  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: 3 April 2009         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 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.  
        
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			 
								         Colonel, U.S. Army
X.  Board Action Directed					         President, Army Discharge Review Board
Issue a new DD Form 214  					
Change Characterization to: 			         
Change Reason to: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080009851
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