Application Receipt Date: 060411 Prior Review Prior Review Date: None I. Applicant Request Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that his discharge was inequitable because it was based on one isolated incident in over 9 years of selfless service with no other adverse action. After returning from Kosovo, Nov '01, and kicking my then wife out of the house, for cheating, a soldiers wife came over to talk to me about it all. We ended up in the bedroom and stopped as soon as it all started. We both knew that we could get into trouble. She told her husband about it and he turned me in. I was totally honest through the entire investigation, just as I always told my soldiers to do. The incident was reported in April '02 and no action was taken until August of '02. During this time my entire chain of command changed, except for the Battalion Commander. My 1SG, Company Commander, Battalion SM, and Battalion XO had all moved. Each one of them knew my performance from prior years and recomended minor punishment, i.e. letter of repramand or an article 15. The soldier that turned in the incedent was moved from my company to the headquarters company. He was seen many times with the Battalion Commander. A few soldiers in my company that talked to him stated that the Battalion Commander asked the soldier what my punishment should be. The Battalion Commander even stated to me during my out processing that my work performance had nothing to do with my punishment. I feel that the Battalion Commander didn't act fair in this case at all. I mentioned all of this to my millitary lawyer and nothing was done. He never asked any names, researched anything, or questioned me about any of it. He only recommended I take the offer to leave the military because the judge was a mean one. The Military was the life I wanted since I was a little kid. I loved to serve my country and do what it asked of me. My military records should show that I continually improved over the years. My last week in the Army, I found out I had made the E-7 list. I was ahead of alot of people I knew. It would have been just over 10 years to make my E-7. I would give anything to be able go back and change what happened so I was still in, but I can't. II. Were Proper Discharge and Separation Authority procedures followed? Yes No Tender Offer: ????? See Attachments: Legal Medical Minority Opinion Exhibits III. Original Character of Discharge Unit CDR Recommended Discharge: Date: 020725 Discharge Received: Date: 020903 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: Company B, 3rd Battalion, 7th Infantry, 3rd Infantry Division, Fort Stewart, GA 31314 Time Lost: None Article 15s (Charges/Dates/Punishment): None Court-Martials (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record DOB: 730906 Current ENL Date: Reenl/971114 Current ENL Term: 6 Years ????? Current ENL Service: 4 Yrs, 9 Mos, 0 Days ????? Total Service: 10 Yrs, 1 Mos, 0 Days ????? Previous Discharges: RA-920804-950531/HD RA-950601-971113/HD Highest Grade: E6 Performance Ratings Available: Yes No MOS: 11B10 Infantryman GT: 115 EDU: HS Grad Overseas: Yugoslavia, Kosovo Combat: None Decorations/Awards: ARCOM (3), AAM (5), GCMDL (3), AFEM, NATOM (2), KCMDL, AFSM, NCOPDR (2), ASR, OSR V. Post-Discharge Activity Home of Record: Current Address: Post Service Accomplishments: None Listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 27 June 2002, the applicant was charged with wrongfully having sexual intercourse with a woman, not his wife, between on or about (020301 to 020331). On 31 July 2002, 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 unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge. On 5 August 2002, the separation authority approved the discharge 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, and the issue he submitted, the analyst found no mitigating factors that 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 that the applicant was aware of that prior to requesting discharge. Therefore, the reason for discharge and the characterization of service remains both proper and equitable. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 14 February 2007 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: N/A Witnesses/Observers: N/A Exhibits Submitted: N/A VIII. Board Decision The discharge was: Proper Improper Equitable Inequitable The characterization of service was: Proper Improper Equitable Inequitable The narrative reasons were: Equitable Inequitable DRB voting record: Change No change (Character) Change No change (Reason) (Board member names available upon request) IX. 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, voted to deny relief. Case report reviewed and verified by: Mr. Ron Williams, Examiner X. Board Action Directed No Change Issue a new DD Form 214 Change Characterization to: Change Reason to: None Other: None RE Code: Grade Restoration: No Yes Grade: None XI. Certification Signature and Date Approval Authority: ROBERT L. HOUSE Colonel, U.S. Army President, Army Discharge Review Board Official: MARY E. SHAW DATE: 16 November 2007 Lieutenant Colonel, U.S. Army Chief, Secretary Recorder ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20060005302 Applicant Name: ______________________________________________________________________ Page 6 of 7 pages