Applicant Name:  ?????

Application Receipt Date: 2008/12/01	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: 071015
Discharge Received: 			   Date: 071210   Chapter: 10      AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: 148th MP Det (Rear) (Provisional), Fort Carson, CO 

Time Lost: None

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

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  48
Current ENL Date: 061007/OAD    Current ENL Term: 1 Years  5 Months/28 Days
Current ENL Service: 	01 Yrs, 02Mos, 04Days ?????
Total Service:  		26 Yrs, 00Mos, 26Days ?????
Previous Discharges: 	ARNG-811115-820221/NA
                                       ADT-820222-820522/HD
                                       ARNG-820522-851028/NA
                                       ARNG-851029-031026/NA
                                       AD-031027-040809/HD
                                       ARNG-040810-061006/NA
                                         (Concurrent Service)
Highest Grade: E-8		Performance Ratings Available: Yes    No 
MOS: 31B10/Military Police/31Z10 FA Senior Sergeant/13B10 Cannon Crewmember   GT: 84   EDU: 4 Years College   Overseas: None   Combat: None

Decorations/Awards: ARCOM, AAM-3, ARCAM-6, NDSM-2, GWOTSM, HSM, AFRM-2, AFRM-W/"M" DEV-2, NCOPDR-3, ASR, ASUA, PRNGFM-2, PRNGSM, PRNGECM-6, PRNGACDUTRA, PRNGELPR

V.  Post-Discharge Activity
City, State:  Carolina, PR

Post Service Accomplishments: The applicant states he is a Special Agent for the Commonwealth of Puerto Rico's Special Investigation Bureau and served in this position for the past fourteen (14) years.  He further states being  married with five children. 



VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 14 September 2007, the applicant was charged with conspiring with other Soldiers to commit the offense of falsifying automobile title documents, in violation of Colorado  Revised Statue 39-21-118 x 5 (070309), (070102), (070416),  (070420), and (070319); violation of a lawful general regulation by wrongfully selling vehicles to Soldiers within his command (070101-070420); violation of a lawful general regulation by lending money to Soldiers within his command x 2 (070101-070415), (070101-070415); violation of a lawful general regulation by lending money to a 1LT (070101-070415); wrongfully selling more than three (3) used motor vehicles and wrongfully offering for sale more than three (3) used motor vehicles in a single calendar year, in violation of Title 12, Article 6, Part 1 of the Colorado Revised Statues (070101-070420), and willfully attempting to evade or defeat taxes owed on the sales of multiple used motor vehicles by wrongfully falsifying actual sales prices on Colorado Department of Motor Vehicles documents, in violation of Colorado  Revised Statues 39-26-113 and 118 (2007).  On 11 October 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 veteran’s benefits.  The applicant's legal counsel submitted a statement in his behalf.  The applicant's chain of command recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  On 15 November 2007, the separation authority approved the Chapter 10 request with an under other than honorable conditions discharge.  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 during the period of enlistment under review, the issues and documents 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, the analyst noted the applicant’s issue and found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the analyst considered the applicant’s quality of service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently meritorious to warrant an upgrade to the characterization of service.  Additionally, the record does not support the applicant’s contention, and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition.  Finally, regarding the applicant's request to retain his rank and retire from the military with a general, under honorable conditions discharge does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing DD Form 149 regarding this matter.  An application for that Board is enclosed.  In view of the foregoing, 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: 23 September 2008         Location: Washington, DC

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: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090000330
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