Applicant Name:  ?????

Application Receipt Date: 2012/03/13	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he regrets the way he acted while serving his country.  Having this kind of notation on his record kills his chances of fulfilling his dreams as trying out to be a police officer or even a corrections officer.  He has a family and children and feels that he needs to do something important for his country even if its only at a city or state level.  He wishes every day that he could be back in and show his unit and superiors that he can be a Soldier and not a civilian. 

He loves his country and served twice in Iraq defending it.  He has spilled blood and received psychological problems because he gave this country all his heart until November 2009 through April 2012.  In that time he had a few problems with a certain individual in his unit that his superiors wouldn't help him fix.  He asked to be remove from the unit and put in elsewhere but his commander refused. 

He was wrongfully iimprisoned for 7 days according to the base magistrate.  His lawyer did not want to fight for him and he has people that would vouch in his favor.  He was also not put through the medical process thoroughly before they put him out and he doesn't believe that he was treated fairly as the discharge process was completed.  

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: 100413   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: Company F, 204th Brigade Support Battalion, 2nd Brigade Combat Team, 4th Infantry Division (Mechanized), Fort Carson, CO. 

Time Lost: AWOL x 1, (100219-100304) 16 days, returned to his unit, military confinement (100305-100310) 5 days.  Total time lost was 22 days. 

Article 15s (Charges/Dates/Punishment): 070128, disobeyed a lawful order from SGT, a noncommissioned officer (070117), disrespectful in deportment towards 1LT (070117); reduction to Private (E-1), suspended, to be automatically remitted if not vacated before (070428); forfeiture of $340.00 pay per month for one month, extra duty for 14 days (CG)

The suspension of the punishment of reduction to Private (E-1) imposed on (070128) was vacated effective (070216) based on the applicant's offense of disobeying a lawful order from SGT, a noncommissioned officer (070117).

100106, failed to go to his appointed place of duty x5 (5091030), (091118), (091121), (091201), (091214), disrespectful in language and deportment toward SSG, a noncommissioned officer (091030), failed to obey a lawful order from SSG, a noncommissioned officer (091121), disobeyed a lawful order from SSG, a noncommissioned officer (091214), made an official statement which was false (091030), wrongfully communicate a threat to SSG, a noncommissioned officer (091030), wrongfully communicate a threat to SSG, a noncommissioned officer (091214); reduction to Private First Class (E-3), forfeiture of $433.00 pay; extra duty and restriction for 14 days (CG). 

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 


IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: 080417    Current ENL Term: 3 Years  9 weeks
Current ENL Service: 	1 Yrs, 11  Mos, 5  Days ?????
Total Service:  		5 Yrs, 1  Mos, 8  Days ?????
Previous Discharges: 	ARNG 050214-061119/NA
                                       ADT    060328-060715/HD
                                       ARNG 060716-061119/NA
                                       ADT    061120-070714/HD
                                       ARNG 070715-080416/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 88M10 Motor Transport Oper   GT: NIF   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq (080905-090818)
Decorations/Awards: ARCOM, NDSM, GWOTSM, ICMw/ 2 CS, ASR, OSR (2), AFRMw/ M Device, CAB

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, the record does contain the separation approving authority's memorandum dated 7 April 2010, approving the applicant's request for discharge udner the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial with an under other than honorable conditions discharge which the applicant acknowledged receipt of the Commanding Genera'ls action and indicated he understood its meaning and effect.  Further, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  
       
       The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  Additionally, the DD Form 214 shows a Separation Code of KFS (i.e., in lieu of trial by court-martial) with a reentry eligibility (RE) code of "4."   

       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 and the issue submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge.  
       
       The only pertinent evidence available for review regarding the applicant's discharge is the separation approving authority's memorandum dated 7 April 2010 and the  DD Form 214, Certificate of Release or Discharge from Active Duty, which was authenticated by the applicant.  The DD Form 214 shows the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  
       
       Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request 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. 
       
       In the absence of information to the contrary, 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.  It also noted the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant would have been aware of it prior to requesting discharge. 
       
       The applicant's contentions were carefully considered.  However, the analyst is unable to determine whether these contentions have merit because the facts and circumstances leading to the discharge are unknown.  The burden of proof remains with the former Soldier to provide the appropriate documents or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.  If the applicant desires a personal appearance hearing, it will still be his responsibility to meet the burden of proof since the evidence is not available in the official record. 
       
       Therefore, based on the available evidence, the analyst presumes government regularity in the discharge process and concludes that it appears 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: 17 August 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293 dated 8 January 2012.













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: No Change
RE Code: 
Grade Restoration:   No   Yes   Grade: No Change

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 AR20120006118
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