Applicant Name:  ?????

Application Receipt Date: 2009/07/10	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states: "I was unfairly victimized by my then PSG and allowed to be harassed. He made it impossible for me to perform my duties. This "man" was abusive and I couldn't function properly from all the unwarrented harassment. This PSG was just investigated by IG, administratively reprimanded and dismissed from his company. His next assignment was in my company and as my PSG. He has a track record already. 
Reason #2. From being put in charge of details without being told I became mentally and physically ill. I was to nervous to sleep always having to change uniforms and race to wherever to perform I don’t now what.This man purposefully failed to inform me in an appropriate and professional manner of any  new duties  correct locations and times thus making me appear to other as aloof, disorganized and negligent in my duties. Too often I would be informed by those who were to be the detail and many times by chance from others in passing. A court martial soon developed for me once I turned down a field grade Article-15 recommended by this PSG, for missing a formation and losing an AWOL soligers packet (which can easily be downloaded and filled in) from an office that was disgustingly messy. Either it was because we were still in transition and only in the new buildings less than 3 weeks. If it was even lost at all and not moved by the same PSG I can’t prove but  the man has a proven harassing track record and I didn’t.

Reason # 3 My JAG representation was a complete farce. The normal proceeding for an individual facing punitive judiciary charges were not granted to me. I was ordered to attend a 30 day field training exercise at FT Polk LA. Even thou this is not the SOP. While in the box I  wasn't given an opportunity to counsel with my JAG lawyer. Eventually, completing the exercise allowed me to return and I the very next work day requested to be allowed to go see  my JAG Atty. My Atty. informed be that it would be best for me to request a new council because of an Abu Ghraim case she had recently be given and couldn’t  have the time to council me appropriately. She was always honest and upbeat so I took her advice. I never meet with my 2nd council due to him being in airborne school for 3 weeks , coincidence, I think not. The next and final council was incorrect in his information. Either due to his inexperience or his lack of interest He informed me that I should take a chapter go to school and come back in 6 months vs the option of being sent to Leavenworth for a year if found guilty. We had the conversation the first time and last time we met.  5-10 minutes prior to my appearance before the judge making and agreeing to a taking a chapter in-lieu of court martial.

Reason 4 My LT ( LT B.) (redacted) during this period had a meeting with my 1SGT, PSG, CO, and a special appearance all the way from his office at the Jag Headquarters in Washington DC. A (MG B.) (redacted), His Farther at that time 2 star General and JAG Corps most ranking official. I happen to be working in the arms room across from the CO office and came out to see who was out there after hearing attention and without even looking at my name tag the General called me by my name and asked how I was doing. My record was impeccable as I served in OEF 1 with the first Army units in country three weeks after the towers fell in 01. I reached my ETS on 11/02 attended college and went into the reserves where I re classed while holding a full time job security plus work/ study with the VA ofiice. I grew tired of the civilian soon and went to active duty in 05. I then selected the critically needed Cavalry Scout MOS and while there at the school volunteered for Airborne School and then completing the NCO Academy all being done within 1 year. repayment with an Others Than Honorable Discharge? I wasn't even given allowed to attend all my ACAP appointments as The PSG speed things up next thing I am out on the streets. No one can call this just and I am currently telling my story to some media networks. This is a total abuse of authority. I might have taken the Article 15 now but I thought you don't have the worry as long as you do the right thing. I lived the Army value but I was the only one and I was punished for it. This board can correct an obvious wrong here."









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: 060531
Discharge Received: 			   Date: 060613   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: A Trp, 5/73d Cav, 82d Abn Div, Fort Bragg, NC 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 060224, Article 15 proceedings were initiated for failing to go at the time prescribed to his appointed place of duty (060106 and 060210), disobeying a lawful order from a noncommissioned officer (060209); dereliction in the performance of his duties (060112); and sleeping on duty (060208).  However, the document was not completed.  

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  29
Current ENL Date: 050503    Current ENL Term: 03 Years  12 Weeks
Current ENL Service: 	01 Yrs, 01Mos, 11Days ?????
Total Service:  		06 Yrs, 07Mos, 11Days ?????
Previous Discharges: 	RA-991103-021102/HD
                                       USAR-021103-050502/NA
Highest Grade: E5		Performance Ratings Available: Yes    No 
MOS: 19D10/Cavalry Scout   GT: 107   EDU: GED   Overseas: None   Combat: None
Decorations/Awards: NDSM, GWOTSM, ASR

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 16 March 2006, the applicant was charged with failing to go at the time prescribed to his appointed place of duty (060106 and 060210), dereliction in the performance of his duties (060112 and 060209), and sleeping on duty (060208).  On 30 May 2006, 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 which was not found in the available records.  The applicant's chain of command recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  On 1 June 2006, the separation authority approved the discharge with an under other than honorable conditions discharge.  
       
       
       
       

       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 and the issues submitted with the application, the analyst recommends that the applicant’s characterization of service be partial upgraded to general, under honorable conditions.  
       
       There was a full consideration of all faithful and honorable service as well as the infractions of discipline, the extent thereof, and the seriousness of the offense.  The evidence in this case supports a conclusion that the characterization of service is too harsh, and as a result it is inequitable.
       
       While the applicant's misconduct is not condoned, the analyst found that the applicant's failure to perform in accordance with Army standards was mitigated by service of sufficient length of service of 6 years, 7 months, and 11 days.  Accordingly, the analyst recommends to the Board that the applicant’s characterization of service be partial upgraded to general, under honorable conditions.  This action entails a restoration of grade to SGT/E-5. 
       
       The analyst noted the applicant's issue requesting an upgrade of his discharge to honorable.  However, by his misconduct the applicant diminished the quality of his service below that meriting a fully honorable discharge.  
       
       Furthermore, the applicant states ineffect that he was not treated fairly by his command and legal counsel.  However, the analyst 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.
       
       Additionally, in reference to the applicant's issue to change his narrative reason for discharge.  The narrative reason specified by Army Regulations for a discharge under this chapter is "In Lieu of Trial by Court-Martial", and the separation code is "KFS."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 24 May 2010         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: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA






























Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 

ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090011733
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