Applicant Name:  ?????

Application Receipt Date: 2012/02/24	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states through his 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 discharge.  Counsel contends there were errors of discretion associated with the discharge which led to an improper discharge and an inequity in the characterization of his service.  He requests a full, fair and impartial consideration from the ADRB.       

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: 091204   Chapter: 10      AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: A Co, III Corps Spec Trps Bn, Fort Hood, TX 

Time Lost: Confinement/Military Authorities for 231 days (090403-091124).

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:  25
Current ENL Date: 070622    Current ENL Term: 06 Years  ?????
Current ENL Service: 	01  Yrs, 09  Mos, 22 Days ?????
Total Service:  		08  Yrs, 05  Mos, 19  Days ?????
Previous Discharges: 	RA-001024-031201/HD
                                       RA-031202-050610/HD
                                       RA-050611-070621/HD
Highest Grade: E-6		Performance Ratings Available: Yes    No 
MOS: 11B10 Infantryman   GT: 103   EDU: 15 Years   Overseas: Bosnia/Southwest Asis   Combat: Iraq (061116-080218), (040617-050620)
Decorations/Awards: JSCM, ARCOM, JSAM, AAM-3, AGCM-2, NDSM, ICM-W/CS, GWOTEM, GWOTSM, NPDR-2, ASR, OSR-3, NATO MDL, CIB, EIB, JMUA, MUC  

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 9 February 2009, the applicant was charged with causing Ms. CAG to engage in sexual intercourse by using physical violence , strength, and power, sufficient that she could not avoid or escape the sexual conduct (081018).  On 3 April 2009, the applicant was additionally charged with assaulting PFC TCC with his fist (090314); unlawfully entering the barracks room, property of PFC TCC (090314); and being drunk and disorderly, which conduct was of a nature to bring discredit upon the armed forces (090314). On 15 June 2009, again the applicant was additionally charged with with intent to deceive, by making a false official statement to SA KPD (081020).  
       
       On 22 November 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 submit a statement in his own behalf.  The applicant's chain of command's documentation recommending approval of the Chapter 10 request are not contained in the available records and the analyst presumed government regularity in the discharge process. 
       
       On 25 November 2009, 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 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 and a change to the narrative reason for separation.  
       
       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.  However, 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 all the charges were dismissed.  The analyst determined that this action is a procedural step, which is part of a normal process, when an alternative forum is chosen.  In this case the charges were dismissed because the applicant requested to be discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial and the convening authority approved that request.
       
       The applicant further contends he did not have sexual activity with the alleged victim.  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.  The applicant admitted guilt to the offense, or a lesser included offense and 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.
       
       Further, 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 unjustly discharged. 
       
       Additionally, 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.  
       
       Moreover, the analyst acknowledges the applicant's accomplishments, awards and his combat service; however, it was not found sufficiently mitigating in light of the seriousness of his offenses.
       
       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: 22 August 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel:  yes (redacted)

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated (120221); DD Form 214, dated (091204); Attorney's Brief, eight (8) pages/with attachments 1-20, comprised of documents from his Offficial Military Personnel File (OMPF) which included enlistment contracts, diplomas, certificates of training, various certificates, DD Form 214, honorable discharge certificate, various awards, Enlisted Record Brief (ERB), DD Forms  458 charge Sheet, DD Forms 4187, motion for relief, eight (8) pages, separation authority's documentation, CID Agent's Report, one page, Defense Notice and Motion, five pages, four (4) DA Forms 2166-8 (NCO Evaluation Report),  Army Distance Learning Center, seven (7) pages, Army Training Transcript, three (3) pages, promotion orders 207-015, and other orders, all of the documents had various dates. 










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:




ARCHIE L. DAVIS III
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 AR20120004410
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