Applicant Name:  ?????

Application Receipt Date: 2011/10/26	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states through counsel , 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 applicant contends he had an exemplary career. He further contends being tried on two separate occasions and the charges were dismissed; he was charged a third time and he submitted a  request for discharge.  The applicant desires to continue to serve his country.   

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: 	NIF       Date: NIF
Discharge Received: 			   Date: 090313   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: A Co, 3-3rd Special Forces Group (ABN), 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:  31
Current ENL Date: 040622    Current ENL Term: Indef Years  ?????
Current ENL Service: 	04  Yrs, 08  Mos, 22  Days ?????
Total Service:  		16  Yrs, 11  Mos, 21  Days ?????
Previous Discharges: 	RA-920324-961211/HD
                                       RA-961212-981213/HD
                                       RA-981214-040621/HD
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 18B1P Special Forces Weapons Sergeant/37F1P Psychological Operation Spec/75H1P Personnel Service Spec   GT: 112   EDU: 13 Years   Overseas: Germany/Southwest Asia   Combat: Iraq (030101-030601), (030801-031001); Afghanistan (060801-070227)
Decorations/Awards: BSM, ARCOM-W/"V" DEV, ARCOM-5, AAM-3, AGCM-5, NDSM, AFEM, ICM-W/CS, GWOTEM, GWOTSM, AFSM, NCOPDR-2, ASR, OSR-2, NATO MDL, JMUA, CIB, CAB, SF TAB

V.  Post-Discharge Activity
City, State:  
Post Service Accomplishments: The applicant stated he has worked on several government contracts.







VI.  Facts, Circumstances, and Legal Basis for Separation
       a.  Facts and Circumstances:
       The evidence of record shows that on 5 April 2008, the applicant was charged with intent to deceive, made a false official statement to Special Agent DR (070608); take indecent liberties with AM, a female under 16 years of age, not his wife, by playing with his uncovered penis while standing over her as she lay in bed, with intent to arouse his sexual desires (050801-060801); commit an indecent act upon the body of AM, a female under 16 years of age, not the wife, by rubbing her vagina with his fingers, with intent to appeal to his lust (030501-040630); and commit an indecent act upon the body of AM, a female under 16 years of age, not the wife, by rubbing his erect penis against her clothed vagina while Ms. M was sitting in his lap, with intent to arouse his sexual desires (030501-040630).  On 14 January 2009, 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 indicate if a statement was submitted in his own behalf.  The applicant's chain of command recommended trial by a General Court-Martial.
       
       On 14 January 2009, 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.  

       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 requested a change to the narrative reason for separation.  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.
       The applicant contends he had an exemplary career.  Careful consideration was given to his entire service record, to include his prior and post active service; however, the analyst determined that this service was not sufficiently meritorious to overcome the reason for discharge and characterization of service granted.
       
       The applicant further contends being tried on two separate occasions and the charges were dismissed; he was charged a third time and he submitted a  request for discharge.  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 contention.  There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that he was tried on two prevous court-martials.
       
       Further, the analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       The applican desires to continue to serve his country. At the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” cannot be waived and the applicant is no longer eligible for reenlistment.  
       
       Therefore, the analyst determined that 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: 20 April 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: Mr. William E. Cassara 
                Box 2688
                Evans, GA 30809

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated (11092); Attorney's Brief in Support of DD Form 293, consisting of five (5) pages, undated; two (2) Sworn Statements, Applicant's Spouse, five (5) pages, dated (070608), six (6) pages, dated (070614); DA Form 2823 (Sworn Statement), five (5) pages, dated (070608); and a Sworn Statement, four (4) pages, dated (070613).  

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 AR20110021637
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