Applicant Name: ????? Application Receipt Date: 2010/04/23 Prior Review: Prior Review Date: 060628, upgraded. I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states: "I would like to wait until i meet with the board before state my reason. I would like to say while in the army my nco tired to kill me and my unit covered it up. As i said i would just like to wait and talk to the board. i have been told by a group of doctors that i have a very serious case of ptsd. also that i should be on disabilty. i applied and was told that military say i didn't serve honarablely so i'm looking at not receiving it even though i am disable." 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: 041105 Discharge Received: Date: 041210 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: Home Det, 2-69 AR Bn, Fort Benning, GA Time Lost: None Article 15s (Charges/Dates/Punishment): 040722, wrongfully used marijuana (040514-040601), reduction to E-1, forfeiture of $596 for two months, 45 days of extra duty and 45 days of a suspended restriction (FG) Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 18 Current ENL Date: 020129 Current ENL Term: 3 Years extended for 12 months Current ENL Service: 02 Yrs, 10Mos, 12Days Moral waiver approved (011220), positive for THC at the MEPS. Total Service: 02 Yrs, 10Mos, 12Days ????? Previous Discharges: None Highest Grade: E-4 Performance Ratings Available: Yes No MOS: 11B10/Infantryman GT: 90 EDU: GED Overseas: SWA Combat: Kuwait/Iraq (020901-021125 and 030112-030715) Decorations/Awards: AAM, GWOTEM, GWOTSM, NDSM, ICM w/2BS, ASR, CIB V. Post-Discharge Activity City, State: Columbia, SC Post Service Accomplishments: None listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 12 October 2004, the applicant was charged with wrongfully using marijuana on two occasions (040808-040826 and 040702-040720). On 5 November 2004, 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 he could receive an under other than honorable conditions discharge and 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 24 November 2004, 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. On 28 June 2006, the Army Discharge Review Board determined that the applicant’s characterization of service was too harsh and upgraded it to general, under honorable conditions. 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 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. Further, the analyst noted that on 28 June 2006, the Army Discharge Review Board upgraded the applicant’s discharge to a general, under honorable conditions characterization of service. The applicant contends that his NCOIC tried to kill him and his unit tried to cover it up. 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 someone was trying to harm him. In fact, the applicant’s Article 15 and two offenses of using illegal drugs justify charges under court-martial proceedings for which, if convicted, he could have received a punitive discharge. The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence in support of his contention. Further, the analyst found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Finally, the file was void of any evidence of PTSD or injuries sustained by the applicant while in Iraq or Kuwait and the applicant did not provide any corroborating evidence of the aforementioned medical issue. 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 Janaury 2011 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: None Exhibits Submitted: DD Forms 214 and 293, Armed Forces Classification Test Results, DD Form 215, medical documents and DD Form 4187. 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 AR20100013638 ______________________________________________________________________________ Page 1 of 3 pages