Applicant Name: ????? Application Receipt Date: 2010/03/11 Prior Review: Prior Review Date: NA 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, change the narrative reason for separation, his reentry eligibility (RE) code; and he desires to serve in the miltary again. He contends that he had five years of exceptional service and he was an integral part of his unit. Also, he contends that prior to this incident he had an unblemished military record. 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: 060721 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: C Co, 1-502nd IN Regt, APO AE 09344 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: 20 Current ENL Date: 010116 Current ENL Term: 06 Years ????? Current ENL Service: 05 Yrs, 06Mos, 06Days ????? Total Service: 05 Yrs, 06Mos, 06Days ????? Previous Discharges: None Highest Grade: E-5 Performance Ratings Available: Yes No MOS: 11B10 Infantryman GT: 104 EDU: HS Grad Overseas: Southwest Asia Combat: Iraq (030303-040212) and (050907-060711) Decorations/Awards: ARCOM, AAM, AGCM, NDSM, ICM, GWOTEM, GWOTSM, NCOPDR, ASR, OSR, OSB-3, CIB V. Post-Discharge Activity City, State: Evans, GA Post Service Accomplishments: The applicant claims he was employed in the security field and as a corrections officer. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The applicant’s record does not contain the DD Form 458 (Charge Sheet), his request in writing for discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial, or the unit commander's documentation recommending approval of the Chapter 10 request with an under other than honorable conditions discharge, and the analyst presumed government regularity in the discharge process. 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 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, with a characterization of service of under other than honorable conditions. Furthermore, the DD Form 214 shows a Separation Code of KFS (i.e., for the good of the Service-in lieu of trial by court-martial), with a reentry eligibility (RE) code of "4." The intermeditae commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge. On 23 June 2006, the separation authority approved the Chapter 10 request with 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 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 fully honorable discharge. The analyst noted the applicant's issue requesting a change to the narrative reason for separation to Expiration of Term of Service (ETS). 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 that he had five years of exceptional service and he was an integral part of his unit. Careful consideration was given to his entire service record, to include his service prior to this incident, and the analyst found that this service was not sufficiently meritorious to warrant an upgrade of the discharge under review. He further contends that prior to this incident he had an unblemished military record. Even though a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The analyst having examined all the circumstances determined that the applicant's single incident of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline. The analyst determined that the applicant’s Official Military Personnel File (OMPF) does not contain all the specific documents that would indicate the reason for the separation action from the United States Army. If the applicant desires to appear before a personal appearance Board, 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. The analyst noted the applicant's issue requesting a change to reentry eligibility (RE) code, and desiring to serve in the miltary again. 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, the characterization of service, to include the reentry eligibility (RE) code 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 November 2010 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: [ redacted ] Witnesses/Observers: NA Exhibits Submitted: DD Form 293, dated (090812); Attorney's Letter (undated); two (2) Certificates of Achievement, Top Gun, dated , (040407); three (3) Character Letters, dated (060517), (060519), (060514). 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 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 AR20100011184 ______________________________________________________________________________ Page 4 of 4 pages