Applicant Name:  ?????

Application Receipt Date: 2008/09/15	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant submitted no issues of equity or propriety to be considered by the Board. 

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: 010125
Discharge Received: 			   Date: 010406   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: USAREC, New England Recruiting Battalion, Topsham, ME 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 000622, engaged in sexual conduct with a woman not his wife (990706), forfeiture of $1,058 (suspended), oral reprimand.

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  30
Current ENL Date: 980319    Current ENL Term: 4 Years  ?????
Current ENL Service: 	03 Yrs, 00Mos, 17Days ?????
Total Service:  		14 Yrs, 09Mos, 14Days ?????
Previous Discharges: 	RA 860623-891023/HD
                                       RA 891024-960620/HD
                                       RA 960621-980811/HD
                                       RA 960812-980318/HD
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 11B30/Infantry NCO   GT: 124   EDU: HS Grad   Overseas: Panama, Hawaii, SWA   Combat: SWA (900814-910401 and 970423-970821)
Decorations/Awards: ARCOM-3, AAM-5, AGCM-2, NDSM, SWA-2BSS, NCOPDR, ASR, OSR-2, KLM, CAB

V.  Post-Discharge Activity
City, State:  Canandaigua, NY
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 25 January 2001, the applicant was charged with two specifications of sodomy (000415 and 000515), and three specifications of having sex with a woman not his wife (000415, 000425, and 000525).  On 1 March 2001, 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 and intermediate commander recommended approval of an under other than honorable conditions discharge.  The document in which the separation authority would have approved the separation action and directed the discharge with a characterization of service of under other than honorable conditions is not contained in the available record.  The applicant was reduced to the lowest enlisted rank. 
       
       The record contains a CID Report dated 13 June 2000.

       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, 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 evidence of record shows that the command attempted to assist the applicant in performing and conducting himself to Army standards by the imposition of non-judicial punishment on 22 June 2000, however, the applicant failed to respond appropriately to these efforts.  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: 25 June 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: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080014604
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