Application Receipt Date: 060428	

Prior Review    Prior Review Date: None

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

Issues: The applicant states, in effect, that he did complete my full tour of duty and at my court marshall the judge was going to give me an honorable discharge but due to the stop laws at the time the only type of discharge i could get was general under honorable condtions  

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: 040220   
Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial
RE:     SPD: KFS
Unit/Location: B Battery, 4th Battalion, 5th Air Defense Artillery, Division Artillery, 1st Cavalry Division, Fort Hood, TX  76544 

Time Lost: AWOL x 2, for a total of 874 days from (010501-030601) and (030613-031005).  He was apprehended by the civilian authorities and placed in the Travis County Jail, Austin, TX and transferred to military authorities at Fort Hood, TX  76545-5056.  He was confined by the military authorities for a total of 75 days from (031029-040113).  

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

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  780214  
Current ENL Date: 980521    Current ENL Term: 3 Years  ?????
Current ENL Service: 3 Yrs, 1 Mos, 20 Days The net active service this period on the DD Form 214, item 12c, should be: 3 Years, 1 Month , 20 Days.  
Total Service:  3 Yrs, 1 Mos, 20 Days ?????
Previous Discharges: None
Highest Grade: E1
Performance Ratings Available: Yes    No 
MOS: 14S10 Avenger Crewmember   GT: NIF   EDU: GED   Overseas: None   Combat: None
Decorations/Awards: NDSM, ASR
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 5 November 2003, the applicant was charged with AWOL x 2, from (030613-030729) and (010501-030602).  On 14 January 2004, the applicant was found guilty by a Special Court-Martial of AWOL x 2, from (030613-031005) and (010501-030528).  He was sentenced to forfeiture of $795.00 pay per month for three months and confinement for one hundred (100) days.  On 30 October 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 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.  On 4 December 2003, the separation approving authority disapproved the request for discharge and indicated that the processing of the court-martial charges will not be further delayed.  On 23 January 2004, the applicant again 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.  On 30 January 2004, the separation authority approved the discharge with a characterization of service of general, under honorable conditions discharge, and that the charges that formed the basis for this action will be withdrawn from trial and dismissed effective the date of discharge.  
      
      The applicant's separation order 031-0238, discharging him from the Regular Army effective date 010520 was revoked under the provision of AR 635-200. 
      
      The applicant has a Military Police Report dated (031104) and a Supplemental Military Police Report dated (010605) in his OMPF 

      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, and the issue he submitted, 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.  Therefore, the reason for discharge and the characterization of service remains both proper and equitable.  
      
      
      
      
      
      
      

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 21 February 2007              
Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: N/A

Witnesses/Observers: N/A 

Exhibits Submitted: N/A




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     No change    (Character)
		 			       	Change     No change    (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 determined that the discharge was both proper and equitable, voted to deny relief.  
























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

XI.  Certification Signature and Date
Approval Authority: 

ROBERT L. HOUSE
Colonel, U.S. Army
President, Army Discharge Review Board

Official: 


MARY E. SHAW				DATE: 23 February 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20060006048

Applicant Name:  Mr.        
______________________________________________________________________


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