Applicant Name: ????? Application Receipt Date: 2010/06/14 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states,"This discharge was forced on me by my lawyer with no other option except jail time. This discharge denies me mental medical help which is needed." 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: NIF Discharge Received: Date: 100114 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: HHC, 3-3rd Bsde Spec Trps Bn, Fort Benning, GA Time Lost: Confinement/Military Authorities for 27 days (091209-100105). However, this period is not annotated on the DD Form 214 block 29 dates of time lost during this period. 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: 19 Current ENL Date: 060302 Current ENL Term: 04 Years 17 Weeks Current ENL Service: 03 Yrs, 10 Mos, 13 Days ????? Total Service: 03 Yrs, 10 Mos, 13 Days ????? Previous Discharges: None Highest Grade: E-4 Performance Ratings Available: Yes No MOS: 91B10 Wheeled Vehicle Mechanic GT: 101 EDU: HS Grad Overseas: Southwest Asia Combat: Iraq (070310-080514) Decorations/Awards: ARCOM, AGCM, NDSM, ICM-W/CS, GWOTSM, ASR, OSR, MUC V. Post-Discharge Activity City, State: Erwin, NC Post Service Accomplishments: None Listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 14 December 2009, the applicant was charged with failing to go at the time prescribed to his appointed place of duty x 10 (090622), (090714), (090716), (090825), (090826), (090902), (090908), (090908), (090909), (090910); behaving with disrespect toward a CPT (091209); wrongfully communicating a threat to Dr. EH, a threat to he would harm his chain of command if he had the means available (091123); and wrongfully communicating a threat to SPC FCA, a threat by saying he would kill everyone in battalion headquarters (091209). On 17 December 2009, 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 that 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 did not submit a statement in his own behalf. The applicant's chain of command recommended approval of the Chapter 10 request with an under other than honorable conditions discharge. On 4 June 2009, 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. The analyst noted that on the applicant's DD Form 214 block 27, reentry eligibility (RE) code reads "3." According to AR 635-5-1, Separation Program Designator (SPD)/Reentry (RE) Codes Cross-Reference Table, requires 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 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 applicant contends that the discharge was forced on him by his lawyer with no other option except jail time. The analyst found no evidence of arbitrary or capricious actions in consulting with legal counsel. 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. Further, 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 and under stood he could receive an under other than honorable conditions discharge. The applicant also contends that the discharge denies him mental medical help which is needed. The evidence of records shows that the applicant was treated in theater for depression and insomnia. On 8 December 2009, the report of mental status evaluation-addendum, indicated that the applicant was mentally responsible, able to distinquish right from wrong and adhere to right, has the mental capacity to under stand an participate in legal disciplinary proceedings, and psychiatrically cleared for any administrative action deemed appropriate by the command. Also, the record does not support the applicant's contention that he suffers from Post Traumatic Stress Disorder and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition. Additionally, the analyst found that someone in the separation process erroneously entered on the applicant's DD Form 214, block 27, reentry eligibility (RE) code of "3." The analyst recommends that block 27 be administratively corrected to "4." VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 4 February 2011 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: NA Witnesses/Observers: NA Exhibits Submitted: DD Form 293, dated (100608); Letter, Chief, Congressional and Special Actions, dated (100610); FOUO Cogressional, dated (100609); Congressional, Fax Transmittal Sheet, dated (100609); Congressional, Authorization Form, dated (100608); Control Sheet from SFMR-RBX-A, dated (100609); two (2) Applicant's Letter to Congressman; DD Form 214, dated (10114); and Medical Documentation consisting of forty two (42) pages. 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 voted to direct ARBA Promulgation Team-Arlington to administratively correct block 27, reentry eligibility (RE) code to "4." Except for the forgoing modification to the applicant's reentry eligibility (RE) code, 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: The Board voted to direct ARBA Promulgation Team-Arlington to administratively correct block 27, reentry eligibility (RE) code to "4." 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 AR20100016889 ______________________________________________________________________________ Page 1 of 3 pages