Applicant Name:  ?????

Application Receipt Date: 2009/05/07	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and supporting 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: 071120
Discharge Received: 			   Date: 071207   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: HHC USAG, Fort Leavenworth, KS 

Time Lost: 682 days (051206-071017), military confinement.

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

Courts-Martial (Charges/Dates/Punishment): 050113, GCM, rape, and having sex with a woman not his wife (040508), reduction to E-1, forfeiture of all pay and allowances, confinement for six years, and a dishonorable discharge.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  24
Current ENL Date: 030612    Current ENL Term: NIF Years  ?????
Current ENL Service: 	04 Yrs, 05Mos, 29Days DD Form 214 indicates 5 yr, 4 mo, 29 days
Total Service:  		07 Yrs, 03Mos, 00Days ?????
Previous Discharges: 	RA 000907-030611/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 21T10/Technical Engineer   GT: 123   EDU: HS Grad   Overseas: Germany, SWA   Combat: Iraq (dates NIF)
Decorations/Awards: ARCOM with V Device, AGCM, NDSM, GWOTSM, OSR

V.  Post-Discharge Activity
City, State:  College Place, WA
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 January 2005, the applicant, while assigned to Vilseck, Germany, was found guilty by a general court-martial of rape and having sex with a woman not his wife (adultery).  He was sentenced to be discharged with a dishonorable discharge, confinement for six years, forfeiture of all pay and allowances, and reduction to E-1.  On 16 December 2005, the sentence was approved.  The record of trial was forwarded to the United States Army Court of Criminal Appeals.  On 5 October 2007, the Court of Criminal Appeals set aside the rape conviction and the sentence, and affirmed the adultery conviction.  The Court authorized a rehearing of the rape charge. On 19 November 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 did not submit a statement in his own behalf.  The unit and intermediate commanders recommended approval of an under other than honorable conditions discharge.  On 20 November 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 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 the charges pending against him were dismissed.  He is correct in his statement, that charges were dismissed without prejudice.  However, this action is a procedural step, which is part of a normal process, when an alternative forum is chosen.  In this case the charges were dismissed because the applicant requested to be discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. He could've chosen to go through a new court martial; however, he did not and requested a Chapter 10 instead.
       
       Furthermore, the analyst acknowledges the applicant's good service record and accomplishments while assigned to Germany and Iraq; however, the analyst noted that even though a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers 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 fully honorable or general, under honorable conditions 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: 5 March 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 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:  
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090008808
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