Application Receipt Date: 060828 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 27 months of service with no other adverse action. 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: 940211 Discharge Received: Date: 940401 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: 615th Military Police Company, APO AE 09177 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: 691202 Current ENL Date: 920109 Current ENL Term: 3 Years With a 2 month extension (930928) Current ENL Service: 2 Yrs, 2 Mos, 23 Days ????? Total Service: 5 Yrs, 5 Mos, 8 Days ????? Previous Discharges: USAR-900724-900815/NA ADT-900816-910103/Unchar USAR-910104-920108/NA Highest Grade: E4 Performance Ratings Available: Yes No MOS: 94B10 Food Service Specialist GT: 89 EDU: HS Grad Overseas: Germany (920111-940330) Combat: None Decorations/Awards: 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 18 January 1994, the applicant was charged with wrongfully damaging the property of female, a SPC, and a PFC, of a value less than $100.00 x 4, (931107), (931022), (931114), (931114), commit sodomy with a female (930906), wrongfully have sexual intercourse with a married woman not his wife (930906), and wrongfully make under oath a false statements x 3, (931114), (931115), and (931115). The applicant's request for a discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial is not part of the available record and the analyst presumed Government regularity in the discharge processed. However, further evidence shows that on 11 February 1994, the Acting Staff Judge Advocate indicated that the chain of command recommended approval of the applicant's request for discharge in lieu of trial by courts-martial be approved with issuance of an under other than honorable conditions discharge. On 11 February 1994, 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. On 11 March 1994, Orders 60-10, DA, 55th Personnel Service Company, Composite Team Unit #28805, APO AE, discharged the applicant from the Regular Army, effective date: 1 April 1994. 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, 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. In view of the foregoing, the analyst determined that the reason for discharge and the characterization of service were both proper and equitable. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 20 September 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 0 No change 5 - Character Change 0 No change 5 - 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: NA Other: NA RE Code: Grade Restoration: No Yes Grade: NA XI. Certification Signature and Date Approval Authority: MARK E. COLLINS Colonel, U.S. Army President, Army Discharge Review Board Official: CHRISTINE U. MARTINSON DATE: 28 September 2007 Lieutenant Colonel, U.S. Army Chief, Secretary Recorder ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20060012203 Applicant Name: Mr. ______________________________________________________________________ Page 5 of 6 pages