Applicant Name:  ?????

Application Receipt Date: 2012/04/02	Prior Review:     Prior Review Date: 5 November 2010

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The appplicant, states in effect, that he wishes to appear before the Board and is requesting a hearing.  This his second request for an upgrade of his discharge to honorable.

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: 050107
Discharge Received: 			   Date: 050509   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: 379th Chemical Co, Chicago, IL 

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: OAD/031207    Current ENL Term: NIF Years  ?????
Current ENL Service: 	01 Yrs, 05Mos, 03Days ?????
Total Service:  		13 Yrs, 03Mos, 05Days 05
Previous Discharges: 	USAR 920205-980117/HD
                                       USAR 980118-050509/UOTH (Concurrent Service)
Highest Grade: E-7		Performance Ratings Available: Yes    No 
MOS: 74D10/Chemical Ops Spc   GT: 108   EDU: College Degree   Overseas: SWA   Combat: Kuwait (040223-050505)
Decorations/Awards: AAM-3, NDSM-2, ICM, GWOTSM, ARCAM-2, AFRM, NOPDR-2, 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 applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  However, the applicant in his previous submission to the ADRB provided  a DD Form 458, Charge Sheet, which indicated that on  7 January 2007, he was charged with maltreatment of two subordinate Soldiers on several occasions, indecent assault upon PFC W, indecent exposure while at Camp McCoy, and again indecent exposure while at Camp Virginia, Kuwait.  All offenses occurred during the period of January 2004 through August 2004. 
       
       The applicant’s election of rights is not contained in the applicant’s OMPF and the analyst presumed government regularity in the discharge process.  The applicant in his previous submission also provided extracts of his Article 32 investigation which indicated that he had legal counsel available to him.
       
       On 27 April 2005, the separation authority approved the Chapter 10 request with a characterization of service of under other than honorable conditions.  The applicant was to be reduced to the lowest enlisted rank upon his discharge.
       
       The record contains an AR 15-6 Investigation dated 30 October 2004 and a CID Report that  indicates that the applicant was the subject of a criminal investigation for charges of indecent acts, indecent assault, and indecent exposure.

       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 and documents submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge.  The evidence of record shows 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 would have 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 the applicant was aware of it prior to requesting discharge.  
       
       In reviewing the applicant's record, the analyst found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       Finally, the analyst acknowledges the applicant’s in-service accomplishments and considered the quality of his service including his deployment in support of OIF I and OIF II.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade of the characterization of his service.  
       
       Therefore, the analyst determined 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: 27 August 2012         Location: Chicago, IL

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: SFC (Retired) W and CSM (Retired) H. 

Exhibits Submitted: Army witness request list, defendant's witness request list and sworn statement comparison, opening statement, previous military schools documents, NCOERs, promotion orders, 3 accuser statements, charges and allied documents, CID report, the rumor questions, court-martial recommendations, supporting emails and a closing statement..

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, 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 1    No change 4
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: NA

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 AR20120006523
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