Applicant Name: ????? Application Receipt Date: 2009/05/27 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: See DD Form 293 submitted by the applicant. 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: 050124 Discharge Received: Date: 050208 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: L Trp, 3-3 ACR, Fort Carson, CO Time Lost: 13 days, AWOL (041022-041103), apprehended; 27 days, AWOL (041104-041230), apprehended. Total time lost 40 days. Article 15s (Charges/Dates/Punishment): 041020, the unit commander’s memorandum indicates the applicant received a company grade Article 15 for failure to report; his punishment was 14 days of extra duty and restriction. The Article 15 is not contained in the record. Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 18 Current ENL Date: 020719. Contract in the OMPF indicates entry on 020708 Current ENL Term: 4 Years ????? Current ENL Service: 02 Yrs, 06Mos, 20Days ????? Total Service: 02 Yrs, 06Mos, 20Days ????? Previous Discharges: None Highest Grade: E-4 Performance Ratings Available: Yes No MOS: 19D10/Cavalry Scout GT: 102 EDU: GED Overseas: SWA Combat: Kuwait/Iraq (030331-040228) Decorations/Awards: ARCOM (in OMPF but not in DD Form 214), NDSM, GWOTEM, GWOTSM, ASR, OSR-2 V. Post-Discharge Activity City, State: Globe, AZ Post Service Accomplishments: None listed. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 10 January 2005, the applicant was charged with desertion, in that on 4 November 2004, without authority and with the intent to remain away permanently, absented himself from his unit and did remain so absent in desertion until his apprehension on 30 December 2004. He was also charged with being AWOL (041022-041103), and with breaking restriction (041104). On 11 January 2005, 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. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge. On 3 February 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, 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 that 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 that the applicant was aware of that prior to requesting discharge. The applicant contends that he was young but the analyst noted that he met entrance qualification standards to include age. There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service. Additionally, the applicant also contends that he had good service as noted by the awards he received; however, the record shows his service was marred by the repeated incidents of misconduct which included being AWOL for 27 days until his apprehension and his Article 15 for failure to report to his designated place of duty. Therefore, the analyst determined that 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: 2 April 2010 Location: Washington, D.C. 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 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 AR20090009978 ______________________________________________________________________________ Page 1 of 3 pages