Application Receipt Date: 070813	

Prior Review    Prior Review Date: None

I.  Applicant Request
Request:  Upgrade     Reason Change     RE Code Change    

Issues: See applicant's DD Form 293 and attached documents.

II.  Were Proper Discharge and Separation Authority procedures followed?  
Yes    No        Tender Offer:   ?????

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Original Character of Discharge
Unit CDR Recommended Discharge:    Date: NIF
Discharge Received:     Date: 070214   
Chapter: 10    AR: 635-200
Reason: In Lieu Of Trial By Court-Martial
RE:     SPD: KFS
Unit/Location: Company A, 2nd Battalion, 502nd Infantry Regiment, 101st Airborne Division (Air Assault), Fort Campbell, KY 42223 

Time Lost: The applicant's DD Form 293 shows that he went on leave from 10 October until 31 October 2006.  The applicant failed to return and was arrested for AWOL on 10 November 2006, in Tennessee.  However, this AWOL period is not annotated on his DD Form 214, item 29, dates of time lost during this period.  

Article 15s (Charges/Dates/Punishment): None

Court-Martials (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  
Current ENL Date: 050616    Current ENL Term: 3 Years  19 Weeks
Current ENL Service: 01  Yrs, 07 Mos, 29 Days ?????
Total Service:  01  Yrs, 07 Mos, 29 Days ?????
Previous Discharges: None
Highest Grade: E3
Performance Ratings Available: Yes    No 
MOS: 11B10 Infantryman   GT: 95   EDU: HS Letter   Overseas: Southwest Asia   Combat: Kuwait/Iraq (051220-060921)
Decorations/Awards: PH, ARCOM, NDSM, ICM, GWOTSM, ASR, OSR, CIB
V.  Post-Discharge Activity
Home of Record: 
Current Address: 
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      The evidence of record shows that on 26 January 2007, the applicant was charged with disrespectful behavior towards a 2LT, by saying to him "given a weapon and ammo, he would kill a SSG x 2, Sergeant, and a 2LT, on or about 23 January 2007; disrespectful in language toward a SSG and a SGT,  by saying to them "given a weapon and ammo, he would kill a SSG x 2, Sergeant, and a 2LT, on or about 23 January 2007; and assaulted a SSG, by thrusting at him with an uncapped pen, on or about 23 January 2007.  On 31 January 2007, 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 applicant's chain of command recommended approval of his request for discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial with an under other than honorable conditions discharge.  On 7 February 2007, the separation authority approved the discharge with an under other than honorable conditions discharge.  
      
      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 during the period of enlistment under review, the issue and documents he submitted, the analyst recommends that the applicant’s characterization of service be upgraded to general, under honorable conditions.  This recommendation was made after full consideration of his faithful and honorable service, as well as his record of misconduct.  The evidence in this case supports a conclusion that the applicant’s characterization of service was too harsh, and as a result it is inequitable.  While the applicant's misconduct is not condoned, the analyst found that the length of the applicant's service; to include his combat service, and the independent diagnosis from competent medical authority, mitigated the discrediting entries in his service record.  However, the analyst determined that the reason for discharge was both proper and equitable.    

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing:  Date: 15 November 2007 Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: NA

VIII.  Board Decision
The discharge was:			Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The characterization of service was:   Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The narrative reasons were: 	       	Equitable	 	Inequitable	

DRB voting record:  		      Change 5    No change 0   - Character
		 			      Change 0    No change 5   - Reason
					      (Board member names available upon request)

IX.  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 does not condone the applicant’s misconduct; however, it determined that the  characterization of service was too harsh, and as a result it is inequitable. The Board determined that the quality of the applicant's service; to include his combat service, and the circumstances surrounding his discharge, mitigated the discrediting entries in his service record.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the Board determined that the reason for discharge was both proper and equitable and voted not to change it.

Case report reviewed and verified by: , Examiner									        
X.  Board Action Directed
No Change 
Issue a new DD Form 214  
Change Characterization to:    
Change Reason to: None
Other: NA
RE Code:  
Grade Restoration:   No   Yes  Grade: None

XI.  Certification Signature and Date
Approval Authority: 

MARK E. COLLINS
Colonel, U.S. Army
President, Army Discharge Review Board

Official: 


CHRISTINE U. MARTINSON			DATE: 15 November 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE