Applicant Name: ????? Application Receipt Date: 2009/01/16 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: See enclosed DD Form 293 and documents submitted by the Applicant. The Applicant states: "After 9/11 I felt compelled to enlist and serve my country. I enlisted in the only branch open to a man of my age. Shortly before leaving for basic training I learned that my wife was pregnant with our first child. While in basic, I received a call from my wife that the sonogram showed our child had no heartbeat. I went home to be with her during and after the surgery to remove the baby. I was granted 10 days leave which was not sufficient time for either of us at such a difficult time. I tried to obtain additional days by calling my unit but was unsuccessful. At this point, I was considered AWOL but felt I had to stay home to take care of my wife as I was concerned for her mental state. Approximately February 2003, things had gotten back to normal in our home and I decided to go to Ft.Sill, OK to face the consequences of my actions. Unknown to me was that my unit had already processed a discharge on my behalf in the prior month. That discharge was dated 1/30/03 and labeled Uncharacterized due to failure to complete training. These documents weren't received until I returned from Fort Sill, OK. I can only assume that this discharge was not logged in the system yet since they were able to process another discharge at Fort Sill. This discharge is dated 5/12/03 and characterized as Other than Honorable Conditions/In Lieu of Trial by Court Martial. It is my belief that the original discharge should stand and the subsequent discharge be removed. This OTH discharge is barring my application for citizenship and I don't believe that my actions should prevent my opportunity to apply for citizenship. I have lived in this country for most of my adult life and consider it my home. I have always been a law abiding and upstanding member of my community and my church. I am happy to say that my wife and I have gone on to have two beautiful healthy children and all members of my family are citizens but me. I humbly request that you consider reinstating the uncharacterized discharge so that I may proceed with my application for citizenship." 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: 030324 Discharge Received: Date: 030512 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: B Co, 2d Bn, 81st Armor Reg, 1st Armor Training Bde, Ft. Knox Time Lost: AWOL (021024-030223) 121 total days surrendered to military authorities. 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: 020126 Current ENL Term: 8 ARNG Years ????? Current ENL Service: 0 Yrs, 4Mos, 13Days ????? Total Service: 0 Yrs, 4Mos, 13Days ????? Previous Discharges: None Highest Grade: E3 Performance Ratings Available: Yes No MOS: None GT: 112 EDU: GED Overseas: None Combat: None Decorations/Awards: None V. Post-Discharge Activity City, State: Nashville, TN Post Service Accomplishments: Nothing provided by the Applicant. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 27 February 2003, the applicant was charged with being AWOL (021024-030224). On 26 February 2003, 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 that he 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 his own behalf. The unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge. On 18 April 2003, 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. 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 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 issues submitted with the application, the analyst found that the characterization of service granted is too harsh and as a result inequitable. The analyst noted that the applicant was in entry-level status when he returned from a period of AWOL (i.e., he had completed less than 180 days of continuous active duty). The applicant was charged with AWOL and while still in an entry-level status voluntarily requested discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. In essence the applicant’s separation action was initiated while the applicant was in an entry-level status and the command had the option to characterize the service under other than honorable conditions or to describe it as uncharacterized. Furthermore, tha analyst noted the applicant’s issue, however, the record indicates the former Soldier received a discharge for his IADT service on 12 May 2003 with under other than honorable conditions. The applicant was also discharged from the Army National Guard and as a Reserve of the Army on 30 January 2003 by the Tennessee Army National Guard, orders number 0040142. 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. The analyst acknowledges the applicant's successful transition to civilian life and noted the many accomplishments outlined with the application and in the documents with the application. However, in review of the applicant’s entire service record, the analyst found that these accomplishments did not overcome the reason for discharge and characterization of service granted. Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. In view of the foregoing the analyst determined that the characterization of service and reason for discharge were both proper and equitable, and recommends to the Board to deny relief. Notwithstanding the propriety of the applicant’s discharge, the analyst recommends to the Board that the applicant’s service should now be described as uncharacterized. However, the reason for discharge remains both proper and equitable. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 21 October 2009 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: NA Witnesses/Observers: NA Exhibits Submitted: NA 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 1 No change 4 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 ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20090001499 ______________________________________________________________________________ Page 1 of 3 pages