Applicant Name:  ?????

Application Receipt Date: 2009/05/06	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and supporting documents provided 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: 090420
Discharge Received: 			   Date: 090430   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: C Co, 2-13 IN Bn, Fort Jackson, SC 

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:  27
Current ENL Date: 061128    Current ENL Term: 6 Years  ?????
Current ENL Service: 	02 Yrs, 05Mos, 12Days ?????
Total Service:  		11 Yrs, 09Mos, 20Days ?????
Previous Discharges: 	RA 970711-000616/HD
                                       RA 000617-061127/HD
Highest Grade: E-7		Performance Ratings Available: Yes    No 
MOS: 42A/HR Spc   GT: 111   EDU: 1 YR COLL   Overseas: SWA, Germany   Combat: Iraq (061026-071222)
Decorations/Awards: ARCOM-3, AAM-5, AGCM-3, NDSM, AFEM, GWOTSM, HSM, ICM, COPDR-3, OSR-2

V.  Post-Discharge Activity
City, State:  Elizabeth City, NC
Post Service Accomplishments: None listed.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that the applicant while serving as a Drill Instructor, was charged with one violation of the UCMJ, Article 92, failure to obey an order or regulation, and with one violation of the UCMJ, Article 125, sodomy.  The unit commander’s memorandum dated 20 April 2009 contained in the record, indicates the applicant had a relationship with a trainee.  The DD Form 458, court martial charge sheet is not contained in the record.  On 1 April 2009, 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 commanders recommended approval of an under other than honorable conditions discharge.  On 23 April 2009, 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, under honorable conditions 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. 
       
             The applicant contends that his ex-wife's court case and charges caused him to make the decision that he made.  However, the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review.
       
       Further, eligibility for veteran's benefits to include medical and educational benefits under the Montgomery GI Bill does not fall within the purview of the Army Discharge Review 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 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: 18 February 2010         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 2    No change 3
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 AR20090008669
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