Applicant Name: ????? Application Receipt Date: 2009/07/21 Prior Review: Prior Review Date: 2009/06/09 Records Review I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he requests an upgrade of his discharge to fully honorable. Also, the applicant contends arbitrary and capricious actions by his command for his refusal to redeploy to Iraq. 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: 050211 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: HHT, 1-4th Cav, APO AE 09033 Time Lost: None Article 15s (Charges/Dates/Punishment): NIF Courts-Martial (Charges/Dates/Punishment): NIF Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 23 Current ENL Date: 030304 Current ENL Term: 04 Years ????? Current ENL Service: 01 Yrs, 11Mos, 08Days ????? Total Service: 01 Yrs, 11Mos, 08Days ????? Previous Discharges: None Highest Grade: E-3 Performance Ratings Available: Yes No MOS: 91W10/Health Care Specialist GT: 110 EDU: HS Grad Overseas: Germany/Southwest Asia Combat: Iraq (Dates NIF) On his DD Form 293, the applicant makes reference to his refusal to sign a waiver to redploy to Iraq. However, his DD Form 214 does not show dates of service in Iraq. Decorations/Awards: NDSM, GWOTSM, GWOTSM, ASR V. Post-Discharge Activity City, State: Lakewood, OH 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 that led to the discharge from the Army. However, the record does contain 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 that the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu trial by court-martial with a characterization of service of under other than honorable conditions. Furthermore, the DD Form 214 shows a Separation Code of KFS (i.e., in lieu of trail by court-martial) with a reentry eligibility (RE) code of "4. On 8 February 2005, Orders 039-001, DA United States Army Europe, Schweinfurt Tranistion Center, APO AE 0933, discharged the applicant from the Regular Army, effective date: 11 February 2005. 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 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 submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge. The only pertinent evidence available for review regarding the applicant's discharge is 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, for the good of the service- 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 that 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 that prior to requesting discharge. By the misconduct, the applicant diminished the quality of the former Soldier’s service below that meriting a fully honorable discharge. The applicant's contention was carefully considered. However, the analyst is unable to determine whether his contention has 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. Therefore, based on the available evidence, the analyst presumes government regularity in the discharge process and concludes that it appears based on the DD Form 214, 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: 24 June 2010 Location: Chicago, IL Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: [redacted] Exhibits Submitted: The applicant submitted the following documents: DD Form 149, dated (090701); Self-Authored Statement; DD Form 214, dated (050211); Memorandum Stating Reasons For Discharge Upgrade; Orders 039-001, dated (050208); Enlisted Records Brief (ERB), dated (050208). The applicant submitted the following additional documents: [redacted] Sheet, dated (100624); Department of Veteran Affairs Rating Decision, five (5) pages dated (100322); Aeromedical Evacuation Patient Request, dated (040606); Memorandum for Record, dated (0405180; five Leave and Earning Statements, dated (040228), (040331), (040430), (040531), (040630), and (040731). 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 XI. Certification Signature Board Vote: Approval Authority: Character - Change 0 No change 5 Reason - Change 0 No change 5 (Board member names available upon request) EDGAR J. YANGER Colonel, U.S. Army X. Board Action Directed President, Army Discharge Review Board Issue a new DD Form 214 Change Characterization to: Change Reason to: No Change Other: NA RE Code: Grade Restoration: No Yes Grade: None 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 AR20090012506 ______________________________________________________________________________ Page 1 of 3 pages