Applicant Name:  ?????

Application Receipt Date: 2011/08/16	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 discharge to general, under honorable conditions or fully honorable, and a change to the narrative reason for separation, the separation (SPD) code and the reentry eligibility (RE) code.   The applicant, through counsel, provides the following issues for the Board's consideration:

Issue 1:  The discharge was improper because the government lacked evidence of serious misconduct sufficient to warrant separation.  

Issue 2:  The characterization of service was improper because the government lacked sufficient evidence of serious misconduct.  

Issue 3:  The separation and characterization of service were improper inasmuch as they both resulted from ineffective assistance of counsel.  

Issue 4:  The discharge for adultery and unlawful entry into PVT M's barracks room was disproportionate to the reasons for which other Soldiers were being administratve separated at the time. 
  
Issue 5:  The characterization of service was inequitable when compared to the reasons for which other Soldiers received under other than honorable conditions discharges at the time. 
 
Issue 6:  The applicant having been improperly discharged from the Army, should not have a record that reflects an RE-4 code.  

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: 061027
Discharge Received: 			   Date: 061122   Chapter: 10      AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: HHC, 7th Army Joint Multinational Training Command, Unit 28130, APO AE 09114 

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:  27
Current ENL Date: 050315    Current ENL Term: 06 Years  00
Current ENL Service: 	01  Yrs, 08  Mos, 08  Days ?????
Total Service:  		01  Yrs, 08  Mos, 08  Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 25V10 Combat Document Production Spec   GT: 118   EDU: 13 Years   Overseas: Germany   Combat: None

Decorations/Awards: NDSM, GWOTSM, ASR

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

VI.  Facts, Circumstances, and Legal Basis for Separation
       a.  Facts and Circumstances:
       The evidence of record shows that on 15 August 2006, the applicant was charged with raping PVT SMM (060414-060415); willfully disobeying a lawful command from a CPT, to have no contact with PVT SMM (060509); a married man, wrongfully having sexual intercourse with PVT SMM, a woman not his wife (060414-060415), and unlawfully entering the barracks room of PVT SMM (060416).  On 23 October 2006, 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 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 unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  The senior intermediate commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  
       
       On 2 November 2006, the separation authority approved the Chapter 10 request and directed an under other than honorable conditions discharge.  The applicant was to be reduced to the lowest enlisted rank.
       
       The record contains an Article 32 investigation which was conducted on 31 August 2006, and a CID Report dated 12 June 2006. 

       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 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 indicates that 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 that the applicant was aware of that prior to requesting discharge.  By the misconduct, the applicant diminished the quality of his service below that meriting a general, under honorable conditions or a fully honorable discharge.
       
       The applicant's attorney requested a change to the narrative reason for separation, the separation (SPD) code and the reentry eligibility (RE) code.  The narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 10, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," the separation code is "KFS," and the reentry code is "RE 4."
       
       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, separation code, entered in block 26, and RE Code, entered in block 27 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.
       
       Issues 1 and 4 are rejected.  The applicant's counsel now contends the evidence was insufficient to warrant a discharge from the Army and disproportionate to the reasons for which other Soldiers were being separated at the time.  However, the evidence of record indicates that the applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  An Article 32 investigation was conducted and it became the basis for the actions taken by the applicant's command.  The analyst found no evidence of arbitrary or capricious actions by the command.  Further, Army regulation 635-200, in pertinent part, stipulates that a Soldier who has committed an offense or offenses, the punishment for which under the UCMJ and the Manual for Courts-Martial, includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial.  The record shows that on 23 October 2006, 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.  Moreover, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. 
         
       Issue 2 is rejected.  The applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  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. 
       
       Issue 3 is rejected.  The applicant's counsel contends that the separation and characterization of service were improper inasmuch as they both resulted from ineffective assistance of counsel.  The applicant was properly advised by legal counsel of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice; of the possible effects of an other than honorable conditions discharge if his request was approved; and of the procedures and rights available to him,the applicant personally made the choices indicated in his request for discharge in lieu of trial by court-martial.  The applicant had the choice to seek civilian counsel if he desired.  There is no evidence in the record that he was improperly advised or that he received ineffective assistance of counsel.
       
       Issue 5 is rejected.  No substantial or credible evidence to support this contention has been provided.  There is no evidence in the record, nor has the applicant's counsel provided any evidence, to support the contention that other Soldiers were treated favorably or received preferential treatment.  Moreover, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.
       
        Issue 6 is rejected.  The applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial.  Army Regulation AR 635-5-1, Separation Program Designator (SPD)/Reentry (RE) Codes Cross-Reference Table, stipulates that a reentry eligibility (RE) code of "4" was required at the time of discharge.
       
       Therefore, the analyst determined that the reason for discharge, the characterization of service to include the separation program designator (SPD) and reentry eligibility (RE) codes were all proper and equitable and recommends to the Board to deny relief. 
       
       
       
       

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 21 March 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: Yes

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated (110810); Attorney's Brief, eight (8) pages, dated (110810); Enclosure 1,  DD Form 214, dated (061122); Enclosure 2, CID Report of Investigation, two hundred thirty-five (235) pages, dated (061202); Enclosure 3, DD Form 458 (Charge Sheet), three (3) pages, dated (060815); Enclosure 4, Article 32 Investigation, dated (060908), twenty-seven (27) pages; Enclosure 5, Request for Discharge In Lieu of Court-Martial, four (4) pages, dated (061023); Enclosure 6, five (5) Charcter Statements, two (2) pages, dated (110311), (110311), (110713), two (2) pages, dated (110311), (110316); Enclosure 7, Memorandum for Record, CPT SQ, two (2) pages, dated (061106); and Enclosure 8, Commander's Report of Disciplinary or Administrative Action, six (6) pages, dated (060927).  

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						
Board Vote:
Character - Change 0    No change 5
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: No Change
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: None

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 AR20110016934
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