Applicant Name: ????? Application Receipt Date: 2010/10/14 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he requests an upgrade of his charge to fully honorable. He contends that he would like the age limit waived since he completed 10 weeks of Officer Candidate School (OCS). 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: 100916 Discharge Received: Date: 100927 Chapter: 7-16e AR: 635-200 Reason: Defective Enlistment Agreement RE: SPD: KDS Unit/Location: HHC, 3-11th IN Regt (OCS), Fort Benning, GA Time Lost: None 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: 41 Current ENL Date: 100603 Current ENL Term: 03 Years ????? Current ENL Service: 00 Yrs, 03 Mos, 26 Days ????? Total Service: 07 Yrs, 09 Mos, 18 Days ????? Previous Discharges: The applicant's previous discharge discharges are not contained in the availbe record. Highest Grade: E-5 Performance Ratings Available: Yes No MOS: None GT: 124 EDU: College Grad Overseas: None Combat: None Decorations/Awards: NDSM, SWASM-W/BSS, ASR, MCGCM, SSDR V. Post-Discharge Activity City, State: Monore, TN Post Service Accomplishments: None Listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that the applicant enlisted in the Army as a Specialist/E-4 to attend Officer Candidate School. 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 record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was electronically authenticated by the applicant’s signature. The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 7, paragraph 7-16, AR 635-200, by reason of defective enlistment agreement, with a characterization of service of uncharacterized. Furthermore, the DD Form 214 shows a Separation Code of KDS (i.e., defective enlistment agreement), with a reentry eligibility (RE) code of "3." On 16 September 2010, the intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a characterization of service of fully honorable. On 22 September 2010, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of fully honorable. The applicant was administratively reduced from E-5 to E-4, due to removal from OCS (100823). b. Legal Basis for Separation: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 7, paragraph 7-17, of that regulation provides, in pertinent part, that a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection. This includes all disqualifying information requiring a waiver. A Soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention. Soldiers separated under this Chapter may be awarded an honorable discharge, or a general, under honorable conditions discharge, or a discharge under other than honorable conditions. If in an entry level status the characterization will be uncharacterized. 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 shows that the applicant would be unable to complete 20 years of active commissioned service before his sixty second birthday, 10 U.SC. 532, and was discharged under the provisions of Chapter 7, paragraph 7-16, AR 635-200, by reason of defective enlistment agreement. The applicant’s service was uncharacterized because he was in entry-level status. A Soldier is in entry-level status (ELS) for the first 180 days of continuous active duty. The purpose of the entry-level status is to provide the Soldier a probationary period. Army Regulation 635-200 also provides, except in cases of serious misconduct, that a Soldier’s service will be uncharacterized when his separation is initiated while the Soldier is in entry level status. A fully honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. The analyst determined that no such unusual circumstances were present in the applicant’s record and his service did not warrant an honorable discharge. The applicant contends that he would like the age limit waived for completion of 20 years of active commissioned service. Enlistment in the military does not alter fundamental rules of law that the government is not liable for erroneous acts of its agents (recruiters); hence the age limit required to complete 20 years of active commissioned service before or on his sixty second birthday; the applicant was aware of this requirement when he enlisted to attend OCS. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 29 June 2011 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: NA Witnesses/Observers: NA Exhibits Submitted: DD Form 293, dated (101010); Partial Chapter 7 Discharge Packet, three (3) 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 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: NA 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 AR20100025933 ______________________________________________________________________________ Page 3 of 3 pages