Applicant Name:  ?????

Application Receipt Date: 2011/08/08	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he was investigated and punished for attempting to care for US Soldiers and other NATO personnel while accomplishing his mission, while undermanned and under resourced in Afghanistan.  He learned that his FOB had housed a number of spies, he made several attempts to have the threat removed and processed by higher command.  Since it was not done, he took matters into his own hands in the interest of the security and safety of his men and other US and NATO personnel.  He frightened several of the spies under his custody into thinking that they would die if they did not disclose information about the network from which they operated.  The information he secured, in the form of verbal confessions, not only confirmed these spies involvement in inflicting approximately 30 casualties against his company of 100 over the previous six months, but it also provided a greater level of usable details.  Instead of being applauded he was investigated and relieved of command for committing "psychological torture" against confirmed spies his command failed to pick up.  Just before his Article 32 hearing, his brigade command's legal team, the prosecution, informed him that they believed that he "...deserved at least two years of confinement for his war crimes."  It became quite clear that the command wanted little to do with supporting him or his position once his case created a PR risk for the organization, taking little interest in the facts and mitigating circumstances of the case.  Many of those mitigating circumstances were created by the command due to a lack of resources and manpower committed to his battle space relative to the threat in the AOR.  The command prosecuted him to the fullest extent, taking 3 (+) months to build a case against him even appointing an MP Bn Cdr over his hearing as the IO.  Upon hearing three days of testimony, the Article 32 IO, expressed his frustration over the CYA approach his command took to executing his case.  His findings were never submitted for record, rather, they were "sealed" and still have not been provided to him despite a still outstanding Feb 2009 FOIA request.  His family and him have served this great nation w/ honor.  He is a fourth generation military member dating back to his great grandfather.  All he has done during his 9 years of active duty service and 4 year WP career has been in the best interest of this nation and safeguarding its most precious resource, its sons and daughters in uniform.  He only asks that the Board hears his case, review the same facts presented at his Article 32 investigation and perhaps he could get some closure with this chapter and move on with the rest of his life.

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: 081014
Discharge Received: 			   Date: 090630   Chapter: 3-13      AR: 600-8-24
Reason: In Lieu of Trial By Court-Martial	   RE:     SPD: DFS   Unit/Location: HHC, CJTF 101, FOB Salerno,  Afghanistan. 

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:  22
Current ENL Date: 000527    Current ENL Term: Indef Years  ?????
Current ENL Service: 	9  Yrs, 1 Mos, 4 Days ?????
Total Service:  		9  Yrs, 1 Mos, 4 Days ?????
Previous Discharges: 	None
Highest Grade: O-3		Performance Ratings Available: Yes    No 
MOS: 11A6P Infantry   GT: NA   EDU: College Grad   Overseas: Korea and SWA   Combat: Iraq (060331 - 070316) and Afghanistan (080320 - 090115)
Decorations/Awards: BSM, ARCOM-3, AAM-2, NDSM, ACM-CS, ICM-CS, GWOTSM, KDSM, ASR, OSR-3, NM

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 14 October 2008, the applicant was charged with being cruel and maltreating a detainee, a person subject to his orders, allowing Soldiers to assault the detainees (080822 – 080827); made a statement with intent to deceive to MAJ S, “I did not witness any Soldiers abuse detainees,” (080828); allowed and encouraged Soldiers under his command to assault detainees, to the disgrace of the armed forces (080822 – 080827); wrongfully inflicted cruel and inhuman treatment to detainees (080822 – 080827); and on 20 November 2008, the applicant was charged with committing an assault upon a detained person by pointing and firing a loaded firearm within his vicinity (080823); unlawfully grabbed a detained person by the hair and forced him to the ground (080823).  
       
       On 10 December 2008, 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 a general, under honorable conditions characterization of service.
       
       On 26 February 2009, the Deputy Assistant Secretary (Army Review Boards) reviewed 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 all the applicant’s military records during the term of service under review, the issues and documents submitted with the application, the analyst recommends the applicant’s characterization of service be upgraded to fully honorable.  This recommendation was made after full consideration of the former Soldier’s faithful and honorable service, as well as the record of misconduct.  The evidence in this case supports a conclusion that the applicant’s characterization of service was too harsh, and as a result it is now inequitable.  While the applicant's misconduct is not condoned, the overall length and quality of service to include the applicant’s combat service, and post service accomplishments mitigated the discrediting entries in the service record.  However, the analyst determined that the narrative reason for discharge was both proper and equitable.
       
       The analyst noted the applicant's issue concerning the termination of a $5,000.00 fine; however, the assistance the applicant requests does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans Service Organization.  Additionally, eligibility for veteran's benefits to include medical and educational benefits under the Post-9/11 or 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. 
       Further, the applicant was discharged under the provisions of Chapter 3 paragraph 3-13, AR 600-8-24, by reason of in lieu of trial by court-martial, 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.  A reentry code is not assigned  to officers being separated from the Army for cause. 

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 9 April 2012         Location: Washington, D. C.

Did the Applicant Testify?  Yes     No  

Counsel: Yes

Witnesses/Observers: None 

Exhibits Submitted: DD Form 293 with a self-authored statement, various character references, Article 32 transcript, and a DD 214

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant's record of service during the period under review, hearing his testimony, and notwithstanding the analyst's recommendation and rationale, the Board determined that 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 Army Officers.  By his actions of abusing and allowing others to abuse detainees in violation of Army Regulations, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant provided no corroborating evidence demonstrating that the command’s actions were erroneous and the Board found no evidence of arbitrary or capricious actions by the command.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process and voted to deny relief.    





















        
IX.  Board Decision						
Board Vote:
Character - Change 1    No change 4
Reason -     Change 0    No change 5
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:



EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board






BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder
























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 AR20110015469
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