Applicant Name: ????? Application Receipt Date: 2012/02/09 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that his discharge is the result of being raped and finding his battle buddy dead after he committed suicide, drinking because of the incident, and having been told by his Sergeant to go AWOL and stay gone. 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: 020109 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: HHC1/33d AR Bn, Fort Lewis, WA Time Lost: AWOL x 1 for 374 days (000314-010409), surrendered. Article 15s (Charges/Dates/Punishment): NIF Courts-Martial (Charges/Dates/Punishment): NIF Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 24 Current ENL Date: 980808 Current ENL Term: 04 Years ????? Current ENL Service: 02 Yrs, 05 Mos, 00 Days Includes 265 days of excess leave (010420-020109) Total Service: 02 Yrs, 05 Mos, 00 Days ????? Previous Discharges: None Highest Grade: E1 Performance Ratings Available: Yes No MOS: 45E10/M1 Turret Mechanic GT: 111 EDU: HS Grad Overseas: None Combat: None Decorations/Awards: ASR V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: The applicant completed the Bay Nurse Assistant Program, Anger Management Course, and the Choices Program. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The applicant’s record is void of the specific 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 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). Further, evidence shows that on 25 January 2002, DA, US Army Field Artillery Center and Fort Sill, Fort Sill, OK, Orders 025-0121, discharged the applicant from the Regular Army, effective date: 9 January 2002. 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 during the period of enlistment under review, 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 only pertinent evidence available for review regarding the applicant's discharge is the DD Form 214, Certificate of Release or Discharge from Active Duty, which was not authenticated by the applicant. 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 applicant contends he went AWOL as a result of finding his battle buddy dead and was drinking to forget about the incident. The analyst noted the applicant's contentions; however, the analyst determined that the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review. The analyst noted the applicant's contention that he was raped, however, the record does not support the applicant’s contention, and no evidence to support it has been submitted by the applicant,. The applicant also contends that his Sergeant told him him to go AWOL and stay gone, the analyst noted the contention; 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 or documentation to support the contention that he was told to go AWOL. The applicant’s statement alone does not overcome the government’s presumption of regularity in this case. Furthermore, the analyst determined that the applicant’s Official Military Personnel File (OMPF) does not contain all the specific documents that would indicate the reason for the separation action from the United States Army. If the applicant desires to appear before a personal appearance Board, the burden of proof remains with the former Soldier 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. Therefore, based on the available evidence, the analyst presumes government regularity in the discharge process and concludes that it appears 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: 3 August 2012 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 293, DD Form 149, Self-Authored Letter (2), Cover Letter from The American Legion, dated 31 January 2012, Appointment of Veterans Service Organization, datd 30 January 2012, Certificate of Completion, dated 23 June 2011, Certificate of Accomplishment, dated 20 August 2008, Bay Nurse Assistant Program Completion Certificate, dated 29 May 2002, and DD Form 214 for the period of service under review. 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: NA Other: NA RE Code: Grade Restoration: No Yes Grade: NA XI. Certification Signature Approval Authority: ARCHIE L. DAVIS III 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 AR20120003148 ______________________________________________________________________________ Page 4 of 4 pages