Applicant Name:  ?????

Application Receipt Date: 2010/03/29	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he was legally separated from his spouse for approximately 1 year, and he began dating someone while they were separated. His wife came to Fort Jackson and told his commander and had him arrested.  His wife was also dating someone at the time of his separation and knew that she could get him in trouble if she complained to his commander.  He further contends that they had separation paper work done by the JAG office on base, and were planning there divorce. She only did this out of spite, and ruined his Army career. He was a great Soldier and had no other issues before this incident. He request that he be given at least a general, under honorable conditions discharge. This characterization of discharge has had an adverse affect on his life and has had no problems with the law and has never been arrested 

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: 980126
Discharge Received: 			   Date: 980206   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: Company A, 369th Adjutant General Battalion, Soldier Support Institute, US Army Training Center, Fort Jackson, SC 

Time Lost: None

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

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  29
Current ENL Date: Reenl/960726    Current ENL Term: 3 Years  ?????
Current ENL Service: 	1 Yrs, 6 Mos, 11 Days ?????
Total Service:  		5 Yrs, 11 Mos, 1 Days ?????
Previous Discharges: 	USAR 920228-920305/NA
                                       RA      920306-960725/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 75H10 Personnel Service Spec   GT: 117   EDU: HS Grad   Overseas: Germany (930222-930515)   Combat: None
Decorations/Awards: GCMDL, NDSM, ASR, OSR 

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 evidence of record shows that on 21 January 1998, the applicant was charged with disobeying a lawful order from a 1SG between on or about (971217-980105), violated a lawful general regulation by wrongfully engaging in an illegal association by engaging in personal conversation, sexual intercourse, sodomy, touching of a sexual nature, and providing gifts to PFC, a Soldier in training on divers occasions between (970501-971031), with intent to deceive, signed and made an official statement, which statement was totally false on or about (971218), committed sodomy with a PFC x 2, on or about (970701-970710), (971217-980105), and adultry between on or about (970501-980105). 
       
       On 26 January 1998, 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 commander and intermediate commander's recommended approval of an under other than honorable conditions discharge.  On 30 January 1998, the separation authority approved the discharge with an under other than honorable conditions discharge.  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, the issue and document submitted with the application, the analyst found no mitigating factors which 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 the applicant was aware of it prior to requesting discharge. 
       
       The applicant contends that he was legally separated from his spouse for approximately 1 year, and he began dating someone while they were separated. His wife came to Fort Jackson and told his commander and had him arrested.  His wife was also dating someone at the time of his separation and knew that she could get him in trouble if she complained to his commander.  He further contends that they had separation paper work done by the JAG office on base, and were planning there divorce.  She only did this out of spite to ruine his Army career.  He was a great Soldier and had no other issues before this incident.  He request that he be given at least a general, under honorable conditions discharge.  This characterization of discharge has had an adverse affect on his life and he has had no problems with the law and has never been arrested. 
       
       The board 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 discharge.  Further, the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  By misconduct and poor duty performance, the applicant diminished the quality of his service below that meriting a fully honorable or general discharge.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  
       
       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: 17 December 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: Ms Cari Delgado, CVSO
                 280 N Park Ave, Suite 201
                 Warren OH 44481

Witnesses/Observers: None 

Exhibits Submitted: DD Form 293 dated 11 March 2010, copy of his Divorce Decree dated 4 May 1998.

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 AR20100011767
______________________________________________________________________________


Page 1 of 3 pages