Applicant Name: ????? Application Receipt Date: 2011/11/18 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, she believes her discharge was erroneous and based on a lack of evidence. A person she knew by association claimed raped. She had no knowledge of the incident, but was charged with making a false statement. The charge was based on information received from people who had no knowledge of the incident. She was also charged with violating a no contact order, which the accused was still working in the same environment. She accepted the Chapter 10 discharge because the alternate would have been to stand trial and risk a two years prison sentence and a dishonorable discharge. Also, the accused is serving a one year sentence for consent, not rape. She [the applicant] expressed that she would have been facing twice the punishment the accused received. Finally, she believes that she had been treated unfairly and unfairly punished for a crime she had nothing to do with. 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: 110922 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: 602 CSAMC, Camp Humphreys, Republic of Korea 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: 31 Current ENL Date: 100406 Current ENL Term: 04 Years ????? Current ENL Service: 01 Yrs, 05 Mos, 17 Days ????? Total Service: 01 Yrs, 05 Mos, 17 Days ????? Previous Discharges: None Highest Grade: E-3 Performance Ratings Available: Yes No MOS: 92A10 Automated Logistical Specialist GT: 95 EDU: 13 years Overseas: Korea Combat: None Decorations/Awards: NDSM, GWOTSM, KDSM, ASR, OSR V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: None listed by the applicant. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 3 August 2011, the applicant was charged with violating a no contact order from a commissioned officer (110220); with intent to deceive, made a false official statement to a Special Agent (110208), wrongfully endeavored to impede an investigation by providing a false official statement to a Special Agent (110208); wrongfully endeavored to impede an investigation by providing information to a Soldier (suspect) that Special Agents were collecting cell phones (110220); wrongfully endeavored to impede an Article 32 hearing and influence the actions of MAJ P by testifying falsely concerning her no contact order (110414); and wrongfully concealing information about a serious offense and indescent acts and failing to make it known to civil or military authorities (110207-110414). On 11 August 2011, 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 she understood that she 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 her own behalf. The unit commander recommended approval of an under other than honorable conditions discharge. On 18 August 2011, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions. 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 military records, and the issue and documents 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. The applicant contends she believes her discharge was erroneous and based on a lack of evidence. She had no knowledge of the incident, but was charged with making a false statement. She was also charged with violating a no contact order, which the accused was still working in the same environment. She accepted the Chapter 10 discharge because the alternative would have been to stand trial and risk a two year prison sentence and a dishonorable discharge. The analyst noted the applicant's contentions; 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 her issue. There is no evidence in the record, nor has the applicant produced any evidence or documentation to support the contention that she was unjustly charged or discharged. The applicant’s statement alone does not overcome the government’s presumption of regularity in this case. Furthermore, the analyst found no evidence of arbitrary or capricious actions by the command. 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. Further, the applicant contends the accused is serving a one year sentence for consent, not rape. The applicant's concern was noted; however, the method in which another Soldier’s case was handled is not relevant to the applicant’s case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. 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: 11 May 2012 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 293 and DD Form 214 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 Board Vote: Character - Change 0 No change 5 Reason - Change 0 No change 5 (Board member names available upon request) X. Board Action Directed Issue a new DD Form 214 Change Characterization to: Change Reason to: No Change Other: NA RE Code: Grade Restoration: No Yes Grade: NA XI. Certification Signature Approval Authority: EDGAR J. YANGER Colonel, U.S. Army President, Army Discharge Review Board BONITA E. TROTMAN Lieutenant Colonel, U. S. Army Secretary Recorder 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 AR20110023295 ______________________________________________________________________________ Page 2 of 4 pages