Applicant Name:  ?????

Application Receipt Date: 2009/07/21	Prior Review:     Prior Review Date: 2009/06/09 Records Review  

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he requests an upgrade of his discharge to fully honorable.  Also, the applicant contends arbitrary and capricious actions by his command for his refusal to redeploy to Iraq.

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: 	NIF   Date: NIF
Discharge Received: 			   Date: 050211   Chapter: 10      AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: HHT, 1-4th Cav, APO AE 09033 

Time Lost: None

Article 15s (Charges/Dates/Punishment): NIF

Courts-Martial (Charges/Dates/Punishment): NIF

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: 030304    Current ENL Term: 04 Years  ?????
Current ENL Service: 	01 Yrs, 11Mos, 08Days ?????
Total Service:  		01 Yrs, 11Mos, 08Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 91W10/Health Care Specialist   GT: 110   EDU: HS Grad   Overseas: Germany/Southwest Asia   Combat: Iraq (Dates NIF) On his DD Form 293, the applicant makes reference to his refusal to sign a waiver to redploy to Iraq.  However, his DD Form 214 does not show dates of service in Iraq.
Decorations/Awards: NDSM, GWOTSM, GWOTSM, ASR

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The applicant’s record is void of the specific facts and circumstances concerning the events that led to the discharge from the Army.  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, in lieu 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., in lieu of trail by court-martial) with a reentry eligibility (RE) code of "4.
         
       On 8 February 2005, Orders 039-001, DA United States Army Europe, Schweinfurt Tranistion Center, APO AE 0933, discharged the applicant from the Regular Army, effective date:  11 February 2005.
       
       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 available military records during the period of enlistment under review, the issues and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.
       
       The only pertinent evidence available for review regarding the applicant's discharge is the DD Form 214, Certificate of Release or Discharge from Active Duty, which was authenticated by the applicant.  The DD Form 214 shows 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.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  
       
       Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request 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.  
       
       In the absence of information to the contrary, 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.  It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant would have been aware of that prior to requesting discharge. 
       
       By the misconduct, the applicant diminished the quality of the former Soldier’s service below that meriting a fully honorable discharge.  
       
       The applicant's contention was carefully considered.  However, the analyst is unable to determine whether his contention has merit because the facts and circumstances leading to the discharge are unknown.  The burden of proof remains with the former Soldier to provide the appropriate documents or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.  
       
       Therefore, based on the available evidence, the analyst presumes government regularity in the discharge process and concludes that it appears based on the DD Form 214, 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: 24 June 2010         Location: Chicago, IL

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: [redacted]  

Exhibits Submitted: The applicant submitted the following documents: DD Form 149, dated (090701); Self-Authored Statement; DD Form 214, dated (050211); Memorandum Stating  Reasons For  Discharge Upgrade; Orders 039-001, dated (050208); Enlisted Records Brief (ERB), dated (050208).  The applicant submitted the following additional documents:  [redacted] Sheet, dated (100624); Department of Veteran Affairs Rating Decision, five (5) pages dated (100322); Aeromedical Evacuation Patient Request, dated (040606); Memorandum for Record, dated (0405180; five Leave and Earning Statements, dated (040228), (040331), (040430), (040531), (040630), and (040731).

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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


























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 AR20090012506
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