Application Receipt Date: 060728	

Prior Review    Prior Review Date: None

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

Issues: See applicant's attached DD Form 293.

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: 051213
Discharge Received:     Date: 051227   
Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial
RE:     SPD: KFS
Unit/Location: Home Detachment, 5th Battalion, 3rd Field Artillery, Fort Sill, OK 73503 

Time Lost: The applicant's DD Form 214 shows no periods of AWOL, however, Personnel Action Forms (DA Form 4187's) found in the applicant's military record, shows 2 periods of lost time due to AWOL for a total of 21 days (051111 to 051115 and 051118 to 051205).

Article 15s (Charges/Dates/Punishment): 051012/Disobeying a lawful order from a senior noncommission officer (SFC) on or about (050818), disrespectful in language towards a warrant officer (WO1) on or about (050818), and failed to go at the time prescribed to his appointed place of duty X3 on or about (050810, 050816 and 050817)/(Company Grade)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  830209  
Current ENL Date: 050106    Current ENL Term: 03 Years  26 Weeks
Current ENL Service: 00 Yrs, 10Mos, 29Days (The applicant's DD Form 214 incorrectly shows in item 12c (Net Active Service This Period) yrs 00, mons 11, and days 22, should show ; yrs 00, mons 11, and days 01, base on two periods of AWOL (051111-051114 and 051118-051204)
Total Service:  00 Yrs, 11Mos, 01Days ?????
Previous Discharges: None
Highest Grade: E2
Performance Ratings Available: Yes    No 
MOS: 63B10 (Wheeled Vehicle Mechanic)   GT: 95   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, ASR, GWOTSM
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 9 December 2005, the applicant was charged with failure to go to his appointed place of duty x 4: 20 October 2005, 25 October 2005, 8 November 2005 and 17 November 2005; AWOL x 2, from 11 November 2005 to 15 November 2005 and 18 November 2005 to 5 December 2005; and wrongful use of marijuana between on or about 30 August 2005 and on or about 30 September 2005.  On 12 December 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 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.  The unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge.  On 14 December 2005, the separation authority approved the discharge with an under other than honorable conditions discharge.
      
      
      
      

      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: 25 July 2007              
Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: NA




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 0    No change 5   - Character
		 			      Change 0    No change 5   - 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, and voted to deny relief.





















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: NA
Other: NA
RE Code:  
Grade Restoration:   No   Yes  Grade: NA

XI.  Certification Signature and Date
Approval Authority: 

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

Official: 


MARY E. SHAW				DATE: 1 August 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20060010471

Applicant Name:  Mr.        
______________________________________________________________________


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