Applicant Name: ????? Application Receipt Date: 2010/01/15 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that her discharge was inequitable because it was based on one isolated incident in 7 months during her training period. She would like nothing more, but to serve her country and the reentry code 4 prevents her from doing so. 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: 071205 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: Company W, 244th Quartermaster Battalion, Fort Lee, VA Time Lost: AWOL x 1, for 38 days from (070715-070822), the applicant surrendered to the military authorities at Fort Sill, OK. 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: 18 Current ENL Date: 070109 Current ENL Term: 4 Years ????? Current ENL Service: 0 Yrs, 9 Mos, 19 Days The computation includes 98 days of excess leave from (070830-071205) Total Service: 0 Yrs, 9 Mos, 19 Days ????? Previous Discharges: None Highest Grade: E-2 Performance Ratings Available: Yes No MOS: None GT: NIF EDU: HS Grad Overseas: None Combat: None Decorations/Awards: NDSM V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: None submitted by the applicant. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The applicant’s record is void of the complete facts and circumstances concerning the events which led to the discharge from the Army. However, the evidence of record shows that on 29 August 2007, the applicant consulted with legal counsel and voluntarily, and 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 Chief, Criminal Law Division reviewed the applicant's request for discharge in lieu of trial by court-martial and determined that there was no legal objections to the further processing of the applicant's request in accordance with the unit commander's recommendation. Further, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant’s signature. The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 10, AR 635-200, 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., in lieu of trial by court-martial) with a reentry eligibility (RE) code of "4." On 27 November 2007, Orders 331-0670, DA, US Army Installation Management Command, HQ, US Army Garrison, Fort Sill, OK, discharged the applicant from the Regular Army, with an effective date of : 5 December 2007. 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 available military records and the issue submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge. The only pertinent evidence available for review regarding the applicant's discharge was the DD Form 214, Certificate of Release or Discharge from Active Duty, which was not authenticated by the applicant, her request for discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial, the Chief, Criminal Law Division's legal review, the DA Form 4187's (Personnel Action), and the DD Form 616 (Report of Return of Absentee). The DD Form 214 shows the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request 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. In the absence of information to the contrary, 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. It also noted the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant would have been aware of it prior to requesting discharge. The analyst noted the applicant's issue that her discharge was inequitable because it was based on one isolated incident in 7 months during her training period, and she would like nothing more then to serve her country, but the reentry code 4 prevents her from doing so. Even though a single incident, the analyst concluded that 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. Having examined all the circumstances, the analyst 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. This single incident of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge or general discharge. Additionally, 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. The burden of proof remains with the applicant 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. If the applicant desires a personal appearance hearing, it will still be her responsibility to meet the burden of proof since the evidence is not available in the official record. Therefore, based on the available evidence, the analyst presumes government regularity in the discharge process and concludes that 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: 1 October 2010 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 293 dated 28 December 2009. 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: No Change RE Code: Grade Restoration: No Yes Grade: No Change 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 AR20100001255 ______________________________________________________________________________ Page 1 of 3 pages