Applicant Name:  ?????

Application Receipt Date: 2010/04/23	Prior Review:     Prior Review Date: 060628, upgraded.

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states: "I would like to wait until i meet with the board before state my reason. I would like to say while in the army my nco tired to kill me and my unit covered it up. As i said i would just like to wait and talk to the board. i have been told by a group of doctors that i have a very serious case of ptsd. also that i should be on disabilty. i applied and was told that military say i didn't serve honarablely so i'm looking at not receiving it even though i am disable."

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: 041105
Discharge Received: 			   Date: 041210   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: Home Det, 2-69 AR Bn, Fort Benning, GA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 040722, wrongfully used marijuana (040514-040601), reduction to E-1, forfeiture of $596 for two months, 45 days of extra duty and 45 days of a suspended restriction (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 020129    Current ENL Term: 3 Years  extended for 12 months
Current ENL Service: 	02 Yrs, 10Mos, 12Days Moral waiver approved (011220), positive for THC at the MEPS.
Total Service:  		02 Yrs, 10Mos, 12Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 11B10/Infantryman   GT: 90   EDU: GED   Overseas: SWA   Combat: Kuwait/Iraq (020901-021125 and 030112-030715)
Decorations/Awards: AAM, GWOTEM, GWOTSM, NDSM, ICM w/2BS, ASR, CIB 

V.  Post-Discharge Activity
City, State:  Columbia, SC
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 12 October 2004, the applicant was charged with wrongfully using marijuana on two occasions (040808-040826 and 040702-040720).    
       
       On 5 November 2004, 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 he could receive an under other than honorable conditions discharge and 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 applicant's chain of command recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  
       
       On 24 November 2004, the separation authority approved the Chapter 10 request with an under other than honorable conditions discharge.  The applicant was to be reduced to the lowest enlisted rank.
       
       On 28 June 2006, the Army Discharge Review Board determined that the applicant’s characterization of service was too harsh and upgraded it to general, under honorable conditions.

       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 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.  
       
       Further, the analyst noted that on 28 June 2006, the Army Discharge Review Board upgraded the applicant’s discharge to a general, under honorable conditions characterization of service.
       
       The applicant contends that his NCOIC tried to kill him and his unit tried to cover it up.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that someone was trying to harm him.  In fact, the applicant’s Article 15 and two offenses of using illegal drugs justify charges under court-martial proceedings for which, if convicted, he could have received a punitive discharge.  The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence in support of his contention.
       
       Further, the analyst found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       Finally, the file was void of any evidence of PTSD or injuries sustained by the applicant while in Iraq or Kuwait and the applicant did not provide any corroborating evidence of the aforementioned medical issue.
       
       Therefore, the analyst determined 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 Janaury 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

Exhibits Submitted: DD Forms 214 and 293, Armed Forces Classification Test Results, DD Form 215, medical documents and DD Form 4187.

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: 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 AR20100013638
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