Applicant Name:  ?????

Application Receipt Date: 2011/08/22	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that his discharge was inequitable because he was not given enough time for his body to rid of itself of marijuana before he was given another drug test.

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: 050524
Discharge Received: 			   Date: 050623   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: Rear Det, 3-15 IN Rgt, Fort Stewart, GA 

Time Lost: 220 days, AWOL (041013-050520), returned to military control

Article 15s (Charges/Dates/Punishment): 040809, wrongfully used marijuana (040322-040422), reduction to E-4, forfeiture of $907 for two months (suspended), 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:  20
Current ENL Date: 020329    Current ENL Term: 4 Years  ?????
Current ENL Service: 	02 Yrs, 07 Mos, 14 Days ?????
Total Service:  		05 Yrs, 01 Mos, 24 Days ?????
Previous Discharges: 	RA 990920-020328/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 19K10/Armor Crewmember   GT: 104   EDU: GED   Overseas: SWA   Combat: Iraq (030331-040330)
Decorations/Awards: AGCM, NDSM, ICM, GWOTSM, ASR, PUC

V.  Post-Discharge Activity
City, State:  Moultrie, GA
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 24 May 2005, the applicant was charged with desertion, in that on       13 October 2004, without authority and with the intent to remain away permanently, absented himself from his unit and did remain so absent in desertion until 21 May 2005.  
       
       On 10 June 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 he understood 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 13 June 2005, 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, and the issue submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge.  
       
       The applicant contends that he was not given enough time in between urinalysis to allow his body to rid itself of the marijuana he had consumed.  However, 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.  He was specifically charged with desertion and not with anything related to his drug abuse.  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 found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
       
       Additionally, the applicant contends that the narrative reason for his discharge should be changed.  However, he was separated under the provisions of Chapter 10, AR 635-200 with an under other than honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," and the separation code is "KFS."  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 and separation code, entered in block 26 of the form, will be recorded 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.  
       
       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: 7 March 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: None

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						
Board Vote:
Character - Change 0    No change 5
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: NA

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 AR20110017332
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