Applicant Name:  l

Application Receipt Date: 2010/06/16	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states:  "I was called up from the National Guard to be sent to Ft.Bragg NC to be deployed with my unit to Afghanistan and during the training period I ripped my upper-rhomboid in my back preventing me from being able to deploy with my unit. While my unit deployed, I was sent to Delta Company of a medical hold unit for people returning from Iraq and Afghanistan. I was on 3 profiles instructing me not to do anything not even report to morning formations because of the pain. For the next three months I changed and then was diagnosed with being BI-polar manic. I started to see a therapist and she determined that I was no longer fit to be in the military and sent a copy that I currently have to my commander explaining this and the possible actions I could take having the disorder. After trying to commit suicide the first time and upon being released from the hospital, my commander handed me a piece of paper telling me that the process was in motion for me to be discharged under the grounds of a General Discharge.  Also during this time I was accused of having slept with a girl who was 16 when in fact she said that she was 17. I went to Ft Myers Virginia and talked to the JAG people there and they said that even after interviewing my story and with all my friends that I knew up there that since I was being discharged anyway that there would be no more follow up on this.  Even though she later recanted her statement and my chain of command was aware of this they could not deal with my disorder and could not keep me locked up in the hospital for that extended period of time. I tried to commit suicide again for a second time and they locked me in a hospital again.  I requested SEVERAL times to be transferred to a civilian doctor because you have that right being a soldier when you do not feel that you are receiving the treatment that you deserve at the military hospital. When my chain of command told me they would put me out on a general discharge I believed them and hoped for that to come. I was then informed that I would not be getting this because of my not thought out actions previously, I left the hospital unit without permission for a brief period. When this happened my unit came to me and told me they were sticking me in Camp Jejune until they could figure out what to do with me. I sat there in a cell 23 hours a day with the medicine that I needed and waited 43 days without charges of any sort with is also against military law. On about day 60 came around they brought me a piece of paper saying that if I signed this I could leave. I did not know what I was signing being as I had 4 different JAG layers and the time and I would do anything I could to leave for a reason I was not sure why I was locked up there. If I could have committed some crime they would have taken me to court martial and also I would have been chrged before the 43 day. I had a serious mental condition that impaired me from making me right choices and almost ending my life three times. This could have been avoided by giving me the proper care and letting me see the civilian doctor that I requested because honestly they had to many people coming and going to give the people like me the treatment that I needed.  Today I still have pain in my back and I am told this will never go away and all I wish is to be able to received the right to go to the VA and receive what I am entitled to for this injury. This should be changed based on the grounds that I had a mental disorder that is documented MANY times over and that they imprisoned me with my medication and breaking military law without any charge sheet. In closing I would like to say that now that I am on my medications and final got the therapy that I needed I have been married and once this matter is settled hope to have a child of my own."

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: 041123
Discharge Received: 			   Date: 041210   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court Martial	   RE:     SPD: KFS   Unit/Location: A Co, 3-116 IN Bn, Fort Bragg, NC 

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:  20
Current ENL Date: OAD 040301    Current ENL Term: NA Years  18 months
Current ENL Service: 	00 Yrs, 09Mos, 10Days ?????
Total Service:  		03 Yrs, 06Mos, 09Days ?????
Previous Discharges: 	ARNG 010531-041210/UOTH (Concurrent Service)
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 11B10/Infantryman   GT: NIF   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, GWOTSM, AFRM

V.  Post-Discharge Activity
City, State:  Norfolk, VA
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 23 November 2004, the applicant was charged with providing a false statement with intent to deceive in that he didn’t know that Ms. JF was under the age of 16 years, and carnal knowledge with Ms. JF (040813).  
       
       On 29 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 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.  
       
       On 1 December 2004, the separation authority approved the Chapter 10 request and directed a discharge with a characterization of service of under other than honorable conditions.  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, and 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 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 while his unit was getting ready to deploy, he had a medical issue which prevented him from going with his unit.  He was accused of having slept with an underage girl but she told him she was 17 years old.  Later she recanted her story and his unit was aware but proceeded with the discharge anyway.  When he went to JAG and was told about the Chapter 10, he really did not understand and signed it not knowing exactly what he was signing.  He further contends that he had a serious mental condition that precluded him from making the right choices.   However, the applicant’s shows that on 17 September 2004, the applicant underwent a mental evaluation which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong.  
       
       The applicant contends that his command knew that the victim, had recanted her story, but proceeded to discharge him anyway.  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 he was unjustly discharged.   In fact, the applicant’s misconduct could have led to a punitive discharge, should his command have pursued the court-martial instead of the administrative 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.  
       
       Additionally, eligibility for veteran's benefits to include medical and educational benefits under the Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.
       
       Finally, the applicant contends that the narrative reason for his discharge should be changed because he was suffering from a mental condition.  However, the applicant was separated under the provisions of Chapter 10, AR 635-200 with an under other than 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 "KFS."  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.  
       
       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 January 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: Applicant's parents and his wife. 

Exhibits Submitted: DD Form 214, summary and chronology of events, support statement from his mother, medical history documents, medical examination, emails, mental evaluation.

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 AR20100016541
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