Applicant Name:  ?????

Application Receipt Date: 2011/10/06	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that his discharge was inequitable because it was based on one isolated incident in over 12 years of honorable service with no other adverse action.  He provides a detailed self-authored statement explaining the circumstancs surrounding his case and requests that his ranke be reinstated to SGT/E-5.

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: 110526
Discharge Received: 			   Date: 110615   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: Headquarters, 4th Infantry Brigade Combat Team, 4th ID(M), Fort Carson, CO 

Time Lost: Military Confinement: (110512-110603) for 22 days

Article 15s (Charges/Dates/Punishment): None

Courts-Martial (Charges/Dates/Punishment): 110512, violation of Article 92, UCMJ, failure to obey an order (100822-101022) - reduced to E-5 and 60-day confinement, (SPCM)

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 070324    Current ENL Term: 6 Years  ?????
Current ENL Service: 	04 Yrs, 01 Mos, 00 Days ?????
Total Service:  		12 Yrs, 06 Mos, 12 Days ?????
Previous Discharges: 	RA (981029-020701) / HD
			RA (020702-050923) / HD
			RA (050924-070323) / HD
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 68A1P (Biomedical Equip Spec)   GT: 120   EDU: 14 Years   Overseas: SWA   Combat: Iraq (061006-071227)
Decorations/Awards: ARCOM-3; AAM-3; AGCM-3; NDSM; ICM-CS; GWOTSM; KDSM; HSM; NCOPDR-2; ASR; OSR; MUC

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: Applicant states he is employed.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 13 December 2010, the applicant was charged with violation of Article 90, UCMJ, in that he having received a lawful command from CPT D, his superior commissioned officer, to end any prohibited relationship with PFC V, willfully disobeyed the same (101022) and violation of Article 92, UCMJ, in that he violated a lawful general regulation, to wit: AR 600-20, by wrongfully engaging in a prohibited relationship with a Soldier of a different rank (100822-101022).
       
       On 19 May 2011, 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 submitted a statement in his own behalf.  The unit commander and the intermediate commanders recommended approval of an under other than honorable conditions discharge.  
       
       On 3 June 2011, the separation authority approved the Chapter 10 request and directed the 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 available military records during the period of enlistment under review, the issues and documents he submitted with the application, the analyst recommends that the applicant’s characterization of service be upgraded to a general, under honorable conditions.  Moreover, the analyst also found that the characterization of the discharge is improper; thereby, the recommended upgrade is warranted.
       
       The evidence of the record shows that the applicant was tried by a special court-martial empowered to adjudge a bad conduct discharge.  On 12 May 2011, the military judge adjudged a sentence of reduction in grade to sergeant, E-5, and confinement for 60 days.  There was no punitive discharge adjudged in the sentence.
       
       Subsequently, the applicant requested a post-trial discharge in lieu of the court-martial sentence, under the provisions of Chapter 10, AR 635-200.  The request was approved on 3 June 2011.  The GCMCA ordered that the applicant be discharged under the provisions of Chapter 10, AR 635-200, reduced to the lowest enlisted grade, and that the character of service be characterized as under other than honorable conditions.
       
       Notwithstanding the GCMCA's order, AR 635-200, paragraph 10-8a, states that a discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by courts-martial.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment.  Chapter 3, paragraph 3-8e, further imposes limitations on the characterization, wherein, when the sole basis for separation is a serious offense that resulted in a conviction by a court-martial authorized to impose, but not imposing, a punitive discharge, the Soldier's service may not be characterized as under other than honorable conditions unless such characterization is approved by HQDA (AHRC-EPR-F).  In the available records, there is no document that shows an approval beyond the GCMCA's approval.
       
       Accordingly, the analyst recommends to the Board that the applicant’s characterization of service be upgraded to general, under honorable conditions.  However, the reason for discharge remains both proper and equitable.  This action entails a restoration of grade to E-5/SGT.
       
       
       
       

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 6 April 2012         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated 12 July 2011 w/statement; six NCOERs; ERB; extracted page 47 of AR 635-200; Charge Sheet; Memorandum, dated 9 November 2010; letter of support by 1SG S.

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 characterization of service is improper.  The applicant was sentenced by special court-martial that had the authority to impose, but did not impose, a punitive discharge.  Notwithstanding the propriety of the discharge, the Board determined that in accordance with AR 635-200, paragraphs 3-8e and 10-8a, the least favorable characterization of service that the GCMCA could have approved was general, under honorable conditions.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  This action entails restoration of grade to E-5/SGT. 
        
IX.  Board Decision						
Board Vote:
Character - Change 5    No change 0
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: E-5/SGT

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
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20110020116
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