Applicant Name:  ?????

Application Receipt Date: 2011/05/17	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he received an honorable discharge certificate over the mail and is requesting that his DD Form 214 be updated to reflect his honorable characterization. 

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: 030201
Discharge Received: 			   Date: 030228   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: HHC, 124th Signal Bn, Fort Hood, Texas 

Time Lost: 3 days, AWOL (021231-030102), mode of return is unknown

Article 15s (Charges/Dates/Punishment): 021104, wrongfully used cocaine (011230-020128), reduction to E-2, forfeiture of $619 for two months, and 45 days of extra duty (FG)

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  31
Current ENL Date: 000331    Current ENL Term: NIF Years  ?????
Current ENL Service: 	02 Yrs, 10 Mos, 27 Days ?????
Total Service:  		11 Yrs, 03 Mos, 07 Days ?????
Previous Discharges: 	ARNG 910722-960331/GD
                                       IADT 911009-920207/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 31P10/Microwave Sys Opr   GT: 126   EDU: 2 years of college   Overseas: None   Combat: None
Decorations/Awards: NDSM, ASR

V.  Post-Discharge Activity
City, State:  Eagle Pass, TX
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 1 February 2003, the applicant was charged with being absent without leave (021231-030103), wrongfully using cocaine (021231-030101), and assaulting two Soldiers (020702).  
       
       On 7 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 he could receive an under other than honorable conditions discharge and 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 trial by a court-martial empowered to administer a bad conduct discharge.  
       
       On 11 February 2003, 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.
       
       The record contains a General Officer Memorandum of Reprimand dated 26 September 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 military records, 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 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 the applicant was aware of that prior to requesting discharge. 
       
       Furthermore, the analyst noted the applicant's issue about the honorable discharge certificate that he received in the mail.  However, this certificate is from the US Army Reserve for a period after he was transferred from the Army National Guard and reflects his service in the US Army Control Group and not his active duty service.
       
       Additionally, the analyst noted that the DD Form 2624 (Specimen Custody Document-Drug Testing) found in the applicant's official record shows that the test was coded CO which indicates "Competence for Duty/Command Direct/Fitness for duty.”  The commander directs an individual test for fitness for duty.  The commander has a suspicion that a Soldier is using a controlled substance; however, does not have probable cause.  The Limited Use Policy applies to this test basis, per AR 600-85.  However, the evidence of record also indicates the applicant had returned from AWOL status on 3 January 2003.  This would have given the unit commander probable cause to direct the urinalysis which was conducted on 6 January 2003.  Moreover, the applicant consulted with legal counsel, who would have informed him if the Limited Use Policy applied.  In view of the aforementioned, the analyst determined that the code on the DD Form 2624 was in all likelihood incorrect and should have been coded IO for “Inspection Other” instead of CO for “Competence for Duty.”  The analyst concluded that the rights of the applicant were not prejudiced by the error on file in this case.  The evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made.
       
       Therefore, the analyst determined 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: 24 February 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: Discharge documents and a self-authored statement.

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the analyst’s recommendation and rationale, the Board noted that the government introduced the results of a command directed urinalysis into the discharge process.  This is limited use information as defined in AR 600-85.  Use of this information mandates award of a fully honorable discharge.  Accordingly, the Board voted to change the characterization of service to fully honorable.  However, the board found that the reason for discharge was fully supported by the record and voted not to change it.  This action entails restoration of grade to E-2. 
        
IX.  Board Decision						
Board Vote:
Character - Change 3    No change 2
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: E-2

XI.  Certification Signature
Approval Authority:



EDGAR J. YANGER
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 AR20110010663
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