Applicant Name:  ?????

Application Receipt Date: 2010/10/14	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he requests an upgrade of his charge to fully honorable.  He contends that he would like the age limit waived since he completed 10 weeks of  Officer Candidate School (OCS).  

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: 100916
Discharge Received: 			   Date: 100927   Chapter: 7-16e    AR: 635-200
Reason: Defective Enlistment Agreement	   RE:     SPD: KDS   Unit/Location: HHC, 3-11th IN Regt (OCS), Fort 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:  41
Current ENL Date: 100603    Current ENL Term: 03 Years  ?????
Current ENL Service: 	00  Yrs, 03 Mos, 26 Days ?????
Total Service:  		07  Yrs, 09 Mos, 18 Days ?????
Previous Discharges: 	The applicant's previous discharge discharges are not contained in the availbe record.
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: None   GT: 124   EDU: College Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, SWASM-W/BSS, ASR, MCGCM, SSDR

V.  Post-Discharge Activity
City, State:  Monore, TN 
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that the applicant enlisted in the Army as a Specialist/E-4 to attend Officer Candidate School.  
       
       The applicant’s record is void of the complete facts and circumstances concerning the events which led to the discharge from the Army.  However, the record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was electronically authenticated by the applicant’s signature.  
       
       The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 7, paragraph 7-16, AR 635-200, by reason of defective enlistment agreement, with a characterization of service of uncharacterized.  Furthermore, the DD Form 214 shows a Separation Code of KDS (i.e., defective enlistment agreement), with a reentry eligibility (RE) code of "3."  
       On 16 September 2010, the intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a characterization of service of fully honorable. 
         
       On 22 September 2010, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of fully honorable.
       
       The applicant was administratively reduced from E-5 to E-4, due to removal from OCS (100823).
       
       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 7, paragraph 7-17, of that regulation provides, in pertinent part, that a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  This includes all disqualifying information requiring a waiver.  A Soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention.  Soldiers separated under this Chapter may be awarded an honorable discharge, or a general, under honorable conditions discharge, or a discharge under other than honorable conditions.  If in an entry level status the characterization will be uncharacterized.  

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records during the period of enlistment under review, the issues 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 would be unable to complete 20 years of active commissioned service before his sixty second birthday, 10 U.SC. 532, and was discharged under the provisions of Chapter 7, paragraph 7-16, AR 635-200, by reason of defective enlistment agreement.   
        
       The applicant’s service was uncharacterized because he was in entry-level status.  A Soldier is in entry-level status (ELS) for the first 180 days of continuous active duty.  The purpose of the entry-level status is to provide the Soldier a probationary period.  Army Regulation 635-200 also provides, except in cases of serious misconduct, that a Soldier’s service will be uncharacterized when his separation is initiated while the Soldier is in entry level status. 
       
       A fully honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  The analyst determined that no such unusual circumstances were present in the applicant’s record and his service did not warrant an honorable discharge.
       
       The applicant contends that he would like the age limit waived for completion of 20 years of active commissioned service.  Enlistment in the military does not alter fundamental rules of law that the government is not liable for erroneous acts of its agents (recruiters); hence the age limit required to complete 20 years of active commissioned service before or on his sixty second birthday; the applicant was aware of this requirement when he enlisted to attend OCS. 

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 29 June 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated (101010); Partial Chapter 7 Discharge Packet, three (3) pages.

 

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: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: None































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 AR20100025933
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