Applicant Name:  ?????

Application Receipt Date: 2009/06/17	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: Veterans benefits.  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: Not in File (NIF)
Discharge Received: 			   Date: 070918   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: HHC, 2-69 AR Regt (Rear), Fort Benning, GA 

Time Lost: None

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

Courts-Martial (Charges/Dates/Punishment): 070828, assault by reaching SGT M.'s groin area with his hand (060601-061215), conduct prejudicial to good order and discipline (050101-051201), dereliction of duty by failing to keep proper lookout while on guard duty (050401-051015), violated a lawful general regulation by wrongfully using his position or rank for personal gain and conducted himself in a way that was exploitative or coercive in nature (050101-061215), reduction to E-1, confinement for 9 days, Chapter 10 approved post-trial (070906) with an under other than honorable conditions discharge as part of a plea agreement (GCM).

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  27
Current ENL Date: 040220    Current ENL Term: 6 Years  ?????
Current ENL Service: 	03 Yrs, 06Mos, 29Days ?????
Total Service:  		12 Yrs, 02Mos, 26Days ?????
Previous Discharges: 	RA 950621-980901/HD
                                       RA 980902-040219/HD
Highest Grade: E-7		Performance Ratings Available: Yes    No 
MOS: 11B10/Infantryman   GT: 105   EDU: HS Grad   Overseas: SWA, Bosnia   Combat: Iraq (050113-060119)
Decorations/Awards: BSMV, MSM, ARCOM-4, AAM-4, AGCM-3, AFEM, GWOTSM, ICM, NCOPDR-2, ASR, OSR, NATOMDL, CIB

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 28 August 2007, the applicant was found guilty by a general court martial of assault by reaching SGT M.'s groin area with his hand (060601-061215), conduct prejudicial to good order and discipline (050101-051201), dereliction of duty by failing to keep proper lookout while on guard duty (050401-051015), violation of a lawful general regulation by wrongfully using his position or rank for personal gain and conducted himself in a way that was exploitative or coercive in nature (050101-061215).  He was to be reduced to E-1 and to be confined for 9 days.  Additionally, as part of a plea agreement he was to request a Chapter 10, in lieu of trial by general court martial (post trial).  On 10 May 2007, the applicant waived his right to an Article 32 Investigation.  The sentence was approved on 25 October 2007.  The record of trial was forwarded to The Judge Advocate General of The Army for review by the Court of Military Review. 
       
       The applicant’s record does not contain the all of the facts and circumstances as listed on the DD Form 458, charge sheet.  However, the record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  The DD Form 214 indicates that the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the Service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  Furthermore, the DD Form 214 shows a Separation Code of KFS (i.e., for the good of the Service-in lieu of trial by court-martial) with a reentry eligibility (RE) code of "4."   On 18 September 2007, the applicant was discharged with a characterization of service of under other than honorable conditions.
       
       On 7 March 2008, The United States Army Court of Military Review found the record of trial and the evidence submitted legally sufficient to support the findings of guilty and the sentence beyond a reasonable doubt and ruled that the findings and sentence were final and conclusive. 
       
       The record contains an AR 15-6 Investigation dated 12 October 2006, and a CID Report dated 13 February 2007. 

       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 several offenses 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.  
       
       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.
       
       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: 15 April 2010         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: Dairy Queen certificate, Subway Manager certificate, Driving School certificate, Letter of Eligibility from Transportation Security Administration, and Academy of Cosmetology letter of completion.

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 AR20090010775
______________________________________________________________________________


Page 1 of 3 pages