Applicant Name:  ?????

Application Receipt Date: 2010/02/16	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that his discharge was inequitable because it was based on one isolated incident in 9 years and 1 month of service with no other adverse action. His military, unselfish service prior to the incident is unquestionable and deserving of a honorable discharge; therefor, he believes it is befitting to reconsider, and upgrade his discharge from an other than honorable discharge to general, under honorable conditions. 

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: NIF
Discharge Received: 			   Date: 950227   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: A Battery, 1st Battalion, 82nd Field Artillery, 1st Cavalry Division, Fort Hood, TX 

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:  25
Current ENL Date: 900920    Current ENL Term: 6 Years  ?????
Current ENL Service: 	4 Yrs, 5 Mos, 8 Days ?????
Total Service:  		9 Yrs, 2 Mos, 24 Days ?????
Previous Discharges: 	RA 851204-880417/HD
                                       RA 880418-900919/HD
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 13B10 Cannon Crewmember   GT: 108   EDU: 14 Years/Associate Degree   Overseas: Korea (870817-880818), Italy (910512-920331)   Combat: None
Decorations/Awards: ARCOM (2), AAM (5), GCMDL (3), NDSM, NCOPDR (2), ASR, OSR (2), C/Ach

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None submitted by the applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The applicant’s record is void of the complete facts and circumstances concerning the events which led to the discharge from the Army.  However, on 12 October 1994, the evidence of record shows that the applicant was charged with carnal knowledge on or about (940913), assaulted on or about (940913), and adultery on or about (940913).  On 11 November 1994, 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 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.  Further, the 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 the applicant was discharged under the provisions of Chapter 10, AR 635-200, 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., in lieu of trial by court-martial) with a reentry eligibility (RE) code of "4."  on 7 February 1995, DA, HQ, 1st Cavalry Division, Fort Hood, TX, issued Orders 020-134 discharging the applicant from the Regular Army, with an effective date of: 27 February 1995.  The applicant was to be reduced to the lowest enlisted rank. 
       
       The applicant received a General Officer Memorandum of Reprimand for unlawfully carrying a weapon in his car, dated 25 October 1993.

       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 available military records, the issue and documents submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge.  
       
       The only pertinent evidence available for review regarding the applicant's discharge was the DD form 458 (Charge Sheet), the applicant's request for discharge and 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, 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 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 it prior to requesting discharge. 
       
       The analyst noted the applicant's issue that his discharge was inequitable because it was based on one isolated incident in 9 years and 1 month of service, with no other adverse action.  The analyst considered the applicant’s quality of service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently meritorious to warrant an upgrade to the characterization of service.  Further, even though a single incident, the analyst concluded that 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. 
       
       Having examined all the circumstances, the analyst 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 discharge.  
       
       Additionally, the burden of proof remains with the applicant 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.  If the applicant desires a personal appearance hearing, it will still be his responsibility to meet the burden of proof since all the evidence is not available in the official record. 
       
       Therefore, based on the available evidence, the analyst presumes government regularity in the discharge process and concludes 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: 25 October 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293 dated 1 February 2010 and a copy of his Official Military Personnel File, to include the Article 32 Investigation.  

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: No Change
Other: No Change										
RE Code: 
Grade Restoration:   No   Yes   Grade: No Change








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 AR20100008622
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