Applicant Name:  ?????

Application Receipt Date: 2011/03/28	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he requests an upgrade of his discharge to uncharacterized or general, under honorable conditions, a change to the narrative reason for separation and the reentry eligibility (RE) code.  He contends that he was treated unfairly.  He further contends that he could no longer endure the taunting, mental and physical abuse, he went AWOL.  He desires to rejoin the Army National Guard.  

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: 080521
Discharge Received: 			   Date: 080620   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: U Co, 262nd QM Bn, Fort Lee, VA 

Time Lost: AWOL x 2 for a total of 366 days; (070501-070529) for 29 days, mode of return unknown; (070604-080505) for 337 days, apprehended. 

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:  21
Current ENL Date: 061025    Current ENL Term: 03 Years  21 Weeks/with a moral waiver (061012)
Current ENL Service: 	00  Yrs, 07 Mos, 23 Days ?????
Total Service:  		00  Yrs, 07 Mos, 23 Days includes 39 days of excess leave (080513-080620)
Previous Discharges: 	None
Highest Grade: E-2		Performance Ratings Available: Yes    No 
MOS: None   GT: NIF   EDU: GED   Overseas: None   Combat: None
Decorations/Awards: None

V.  Post-Discharge Activity
City, State:  Hattiesburg, MS 
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 12 May 2008, the applicant was charged with absenting himself from his unit (AWOL) (070604-080506).  On 12 May 2008, 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 submitted 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 28 May 2008, the separation authority approved the Chapter 10 request and directed 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 during the period of enlistment under review, the issues and documents submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  
       
       The evidence of record indicates that 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 requested an upgrade of his discharge to uncharacterized or general, under honorable conditions.  However, Army Regulation 635-200, provides except in cases of serious misconduct, that a Soldier’s service will be uncharacterized when the separation is initiated while the Soldier is in entry level status.  The applicant was in an entry-level status and the command had the option to characterize the service as under other than honorable conditions or to describe it as uncharacterized.  Due to the misconduct (i.e., AWOL), the command opted to characterize his service as under other than honorable conditions.  
       
       Further, a general, under honorable conditions discharge is not authorized under ELS conditions (180 days of continuous active duty).  
       
       The applicant requested a change to the narrative reason for separation.  The narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 10, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," the separation code is "KFS," and the reentry code is "RE 4."  
       
       Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28, separation code, entered in block 26, and RE Code, entered in block 27 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation. 
       
       The applicant contends that he was treated unfairly.  Although the applicant alleges that he was treated unfairly during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.
       
       
       
       The applicant further contends that when he could no longer endure the taunting, mental and physical abuse, he went AWOL.  The applicant had many legitimate avenues (i.e., Community Counseling Center, and other resources available to all Soldiers) through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review.
       
             The applicant desires to rejoin the Army National Guard.  At the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” cannot be waived and the applicant is no longer eligible for reenlistment. 
       
       Therefore, the analyst determined that the reason for discharge, the characterization of service to include the reentry eligibility (RE) code 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: 21 October 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293/with an issues continuation page; and a DD Form 214, dated (080620);

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the term of service 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: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: None







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 AR20110006106
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