Applicant Name:  ?????

Application Receipt Date: 2010/06/02	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, "I have a total of 13 yrs of active duty time, and one time of being in a compromising situation, washed all I have worked for away, I have never got in trouble and have performed well in all I have done in the Army, I wish to serve the country more in National Guard , but the DFS code on my discharge certificate prevents me, the Army has invested so much in me, my case was handled with Bias, the investigation officer never talk to me or my counsel before reaching a conclusion, my OER was written with Bias, which violates the regulation of no including any assumption pending punishment, I love the great nation and will give my life to protect it, please help turn injustice so that I can have a life and be able to feed my family." 

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: 091030
Discharge Received: 			   Date: 100415   Chapter: 3-13       AR: 600-8-24
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: DFS   Unit/Location: F Co, 2nd Bn,  54th Inf Reg, 192nd Inf Bde, Ft. Benning, GA 

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:  30
Current ENL Date: 020509    Current ENL Term: Indef Years  ?????
Current ENL Service: 	02 Yrs, 05Mos, 09Days ?????
Total Service:  		11 Yrs, 11Mos, 07Days ?????
Previous Discharges: 	RA 970307-020508/HD
Highest Grade: O-3		Performance Ratings Available: Yes    No 
MOS: 14A5P Air Defense Artillery   GT: NA   EDU: College Grad   Overseas: Korea, SWA    Combat: Kuwait (030120-030319); Iraq (030320-030601); Afghanistan (071220-081220)
Decorations/Awards: BSM, ARCOM-6, AAM, USN/USMC PUC, AGCM, NDSM-2, ACM w/2campaign stars, GWOTEM, GWOTSM, KDSM, ICM w/campaign star, NCOPDR, ASR, OSR-2, NATO, CAB

V.  Post-Discharge Activity
City, State:  Ft. Mitchell, AL
Post Service Accomplishments: Nothing provided by the applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 30 October 2009, the applicant was charged with violation of UCMJ, Article 133 and 134, in that a he married man, did, at or near Columbus, GA on divers occasions between on or about 31 July 2009 and on or about 19 September 2009 wrongfully have sexual intercourse with Ms F.A.B. a woman not his wife: and did, at or near Columbus, GA on divers occasions between on or about 1 March 2009 and on or about 8 September 2009 wrongfully have sexual intercourse with Ms N.B. a woman not his wife.  
       
       On 24 November 2009, the applicant consulted with legal counsel and voluntarily tendered his resignation from the Army in writing, under the provisions of Chapter 3, AR 600-8-24, for the good of the Service in lieu of trial by a general court-martial or a board of officers.   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 chain of command recommended approval of the resignation for the good of the Service with issuance of an under other than honorable conditions discharge.  
       
       The Ad Hoc Review Board recommended that the applicant’s resignation be accepted with issuance of a general, under honorable conditions discharge.  
       
       On 3 March 2010, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Ad Hoc Review Board and directed the applicant’s discharge with a characterization of service of  general, under honorable conditions.       

       b.  Legal Basis for Separation:  
Army regulation 600-8-24 prescribes the policies and procedures governing the transfer and discharge of Army officer personnel.  Chapter 3, paragraph 3-13 outlines the rules for processing requests for resignation for the good of the Service in lieu of trial by a general court-martial.
       

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of the applicant’s military records during the term of service under review and the issue and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  
       
       The evidence of record shows that the applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  The applicant voluntarily requested resignation in lieu of trial by general court-martial under the provisions of Chapter 3, AR 600-8-24.  The appropriate authority approved the applicant's request and issuance of a general, under honorable conditions characterization of service.  The analyst concluded that by the misconduct, the applicant diminished the overall quality of his service below that meriting a fully honorable discharge.  
       
       The applicant contends that the separation code for his discharge should be changed.  However, the applicant was separated under the provisions of Chapter 3-13, AR 600-8-24 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial", and the separation code is "DFS."  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.  
       
       Furthermore, the analyst noted the applicant's contention that it was one time he was in a compromising situation; however, the record shows that this misconduct was over a three month period of time.  This discrediting entry constituted a departure from the standards of conduct expected of Officers in the Army.  The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by even a single incident provides the basis for a characterization.  The analyst having examined all the circumstances determined that the applicant's misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline.  This misconduct of an Officer clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge. 
       
       Furthermore, the analyst also noted the applicant's issue that he nor his counsel were spoken to before reaching a conclusion on his case.  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.  
       
       Further, the analyst noted the applicant's issue concerning his OER written with bias; however, the issue the applicant submitted is not a matter on which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion relating to the discharge process nor is it associated with the discharge.  
       
       Therefore, the analyst determined that the reason for discharge and the characterization of service remain both, proper and equitable and recommends to the Board to deny relief.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 18 April 2011         Location: Atanta, GA

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: Self authored letter to the board, copies of OERs, a copy of his ORB and copy of the on line application.

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant's record of service during the period of sevice 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 AR20100015762
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