Applicant Name: ????? Application Receipt Date: 2010/06/08 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states: "As I understand it, to obtain an upgrade in my discharge I am required to establish that when my discharge was issued, information was either missing, or incorrect. It is the first of these conditions that I will try to fulfill. During my initial tour in Iraq, from February to October of 2004, I served with enthusiasm. As your documents ought to show, and as I have attached in case there be any doubt, I was awarded the National Defense Service Medal, the GWOT Expeditionary Medal, the GWOT Service Medal, and the Army Commendation Medal. As far as was possible, I tried to work hard during work hours and to bring credit upon the United States and upon the Army in that God-forsaken land. After returning from Iraq, I knew that it would be hard to keep motivation going, but I resolved to do my best. I continued to try to learn and to become a better soldier. As part of these efforts I taught classes at my reserve unit in the History of Civil Affairs, in the French language, and in first aid. My NCOERs, copies of which I attach, should support me on this point. I also attended the basic airborne course at Fort Benning in the summer of 2005, and a “Train the Trainer” course in Tactical Marksmanship at Fort Dix in the summer of 2006. My attendance at drills was nearly perfect, although I was moving, and so had to divide time between units in Chicago, Illinois, Warwick, Rhode Island, and Greensboro, North Carolina. In February of 2007, my battalion commander, Lt. Col. [redacted], assured us that his understanding was that those of us who had deployed before to Iraq or Afghanistan would not be deployed again involuntarily. I believed him. No doubt, I made a poor decision not to confirm his conclusion with other friends in the Army. However, my experience had taught me that the commander is generally privy to better information of certain kinds than anyone else in a unit, and one of these kinds of information is future operations. Yet the next month, a battle roster was called out of those scheduled to leave in the summer for Iraq. My name was on the list. In light of my previous difficulties at the University of Chicago following return from Iraq, I could not have been more distressed at the prospect of another lengthy deployment. I had already switched graduate programs twice, gentlemen, from Princeton to Chicago and from Chicago to the University of North Carolina, as a result of below-standard work. I had reason to think that my work had suffered at Chicago as a result of the deployment, and having to take up academic work again immediately following my return to the United States. I had been grateful for my admission to the University of North Carolina, and there was no reason to think that if my work suffered there and I was asked to leave the program, I would have the chance to enter another Ph.D. program. I faced the prospect of radically changing long-laid plans for a job and a life, thanks to this deployment. My parents and my sisters in Lexington, Massachusetts also faced difficulties. At this time, my father, who had triple bypass surgery on his heart fifteen years ago, was suffering from severe angina. Luckily, he works from home, but between his and my mother’s salary, they still have great difficulty in meeting medical bills. I had already given serious though to taking the summer off to stay with my parents in Lexington, to assure that he would receive the best possible care. Emotions running high, I left my apartment in North Carolina — failing to report to Fort Bragg on June 2, as I had been ordered - and spent the summer with my family, trying to see them through a difficult time, and having no desire to contact anyone in the Army. Resolved to face the inevitable as soon as possible, I retained the services of a lawyer and turned myself in at Fort Sill in late October. I was released after a week, and sent back home on terminal leave to await discharge papers, which I received in March of 2008. And now, gentlemen, I take the notion of honor seriously, and I would not claim that my honor has not been besmirched in this affair. I do not, therefore, ask that you raise the conditions of my discharge to “honorable,” but rather simply to “general.” I stress that my reasons have to do, not with the past, but with the future. I would still like to help the Army’s efforts, and in particular to use those talents that I have honed over many years for teaching. The principal subject that deserves our attention, it would seem, is Islam and the history of those regions where Islam has historically dominated. Far too many soldiers, in my experience, are ignorant of such basic information as that Ramadan is a dangerous period in Iraq for any non-Muslim — I fear that perhaps many have never even heard the word Ramadan. Since my interests have combined European and Near Eastern history, teaching courses on the subject of Islam and the West at one of the service academies, or at the John F. Kennedy Special Warfare Center at Fort Bragg, has been a longstanding ambition. If my discharge I not upgraded I will have great difficulty finding such a post. Were the positions reversed, and I was to sit on a hiring committee, I would not overlook an other-than-honorable discharge, even if said discharge were several years old. Failing this, I would simply like my re-enlistment code changed from 4 to 1 or 2 or 3, that is, to allow me to re-enlist, with or without a waiver. Given all of these circumstances, gentlemen, and given, in particular, my reasons for wishing to get the discharge upgraded, I hope you will see your way clear to raising it to the category of “general”. Now that I have begun to write my dissertation, the end of my Ph.D. is within sight. It would be a privilege for me to think that I might still have a chance to teach at one of the service academies? or, possibly, to re-enlist in either the Army Reserve or Navy Reserve, in order to put knowledge and my teaching ability at the service of the nation." 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: 071115 Discharge Received: Date: 080118 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court Martial RE: SPD: KFS Unit/Location: 422d Civil Affairs Bn, Greensboro, NC Time Lost: 145 days, AWOL (070530-071022), surrendered. 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 070530 Current ENL Term: NA Years 400 days Current ENL Service: 00 Yrs, 02Mos, 26Days ????? Total Service: 05 Yrs, 00Mos, 24Days ????? Previous Discharges: USAR 020729-080118/UOTH (Concurrent Service) IADT 030409-030917/HD Highest Grade: E-5 Performance Ratings Available: Yes No MOS: 38B10/Civil Affairs Spc GT: 130 EDU: College Grad Overseas: SWA Combat: Applicant states he served in Iraq (0402-0410). Not contained in the record. Decorations/Awards: NDSM, ASR V. Post-Discharge Activity City, State: Chapel Hill, NC Post Service Accomplishments: Applicant is pursuing his PHD. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 15 November 2007, the applicant was charged with being AWOL for 145 days when he failed to report as ordered. The DD Form 458, Charge Sheet, is not contained in the available record and the analyst presumed government regularity. On 26 October 2007, 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 that he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits. The applicant submitted a statement in his own behalf. On 12 October 2007, the separation authority approved the Chapter 10 request and directed a 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, 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 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. The applicant contends that he was misled about the possibility of a second deployment to Iraq by his commander. However, 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 issue. There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that he was misled about going on a second deployment to Iraq. In fact, the applicant’s 145 days of AWOL justify a charge of desertion under Article 85 of the UCMJ. His command chose to pursue the less severe charge of AWOL. The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any evidence in support of his contention that he was misled. Furthermore, the analyst noted the applicant’s issue about his family and medical issues as well as his need not to deploy in order to continue his studies at the University of Chicago. However, the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review. The applicant also contends that he has been pursuing his PHD and would like to be able to teach at the Kennedy Warfare Center or at one of the Service Academies. While the Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. The analyst acknowledges the applicant's successful transition to civilian life and noted the many accomplishments outlined with the application and in the documents with the application. However, in review of the applicant’s entire service record, the analyst found that these accomplishments did not overcome the reason for discharge and characterization of service granted. Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. 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. Finally, the applicant contends that the narrative reason for his discharge should be changed. However, the applicant was separated under the provisions of Chapter 10, AR 635-200 with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial", and the separation code is "KFS." 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 and separation code, entered in block 26 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. 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: 24 January 2011 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: None Exhibits Submitted: DD Form 149, NCOER, awards, training certificates, letter of commendation, character reference letter, DD Form 214 listing service in Iraq, ARCOM and additional awards, a self-authored statement, and other military documents. 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: NA Other: NA RE Code: Grade Restoration: No Yes Grade: NA 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 AR20100016547 ______________________________________________________________________________ Page 1 of 4 pages