Application Receipt Date: 060508	

Prior Review    Prior Review Date: 041027

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

Issues: See applicant's attached DD Form  293 and supporting 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: 031230   
Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial
RE:     SPD: KFS
Unit/Location: 489th Engineer Battalion 

Time Lost: None

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

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  811003  
Current ENL Date: 030212    Current ENL Term: NIF Years  ?????
Current ENL Service: 00 Yrs, 10Mos, 19Days ?????
Total Service:  05 Yrs, 00Mos, 10Days ?????
Previous Discharges: USAR-981221-000604/NA
                                      ADT-000605-000720/UNC
                                      USAR-000721-030211/NA (Concurrent Service)
Highest Grade: E4
Performance Ratings Available: Yes    No 
MOS: 21B10 (Combat Engineer)   GT: 115   EDU: 15 yrs   Overseas: Iraq   Combat: Iraq (Dates unknown)
Decorations/Awards: ARCAM, NDSM (2), AFRM w/M Dev, ASR, C/Ach
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 22 October 2003, the applicant was charged with through design miss the movement of the 489th Engineer Battalion's transport to the airport with which he was required in the course of duty to move (031005) and disobeyed a lawful order from a SSG (031005).  On 28 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 submitted a statement in his own behalf.  On 16 November 2003, the separation authority approved the discharge with 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 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, documents 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.  Furthermore, the analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In view of the foregoing, the analyst determined that the reason for discharge and the characterization of service were both proper and equitable.

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 12 June 2007              
Location: Atlanta

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

Exhibits Submitted: 20 additional documents in support of case.




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 5    No change 0   - 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, hearing his testimony, and considering the analyst’s recommendation and rationale, the Board determined that the discharge is now inequitable.  While the applicant's misconduct is not condoned, the Board found that the applicant's overall length and quality of service to include his combat service, the circumstances surrounding his discharge, and his post service accomplishments, mitigated the discrediting entries in the service record.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to fully honorable and change the narrative reason for separation to Secretarial Authority.  This action does entail a restoration of grade to specialist four/E4, and a change to the reentry eligibility (RE) code to "1."














Case report reviewed and verified by: Eric S. Moore, Examiner									        
X.  Board Action Directed
No Change 
Issue a new DD Form 214  
Change Characterization to:    
Change Reason to: Secretarial Authority under Chapter 5, AR 635-200.
Other: NA
RE Code:  
Grade Restoration:   No   Yes  Grade: E4

XI.  Certification Signature and Date
Approval Authority: 

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

Official: 


MARY E. SHAW				DATE: 25 June 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20060006709

Applicant Name:  Mr.        
______________________________________________________________________


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