Application Receipt Date: 060815	

Prior Review    Prior Review Date: None

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

Issues: See DD Form 293 and attached 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: 040316   
Chapter: 10    AR: 635-200
Reason: In Lieu Of Trial By Court-Martial
RE:     SPD: KFS
Unit/Location: A Company, 169th Engineer Bn, 1st Engineer Bde, Fort Leonard Wood, MO 65473 

Time Lost: AWOL-4 days from (040103-040106), mode of return to military control not in the file.

Article 15s (Charges/Dates/Punishment): The Staff Judge Advocate mentions in his memorandum dated 12 March 2004, that the applicant received a Company Grade Article 15 dated 13 January 2004.  However, the documentation is not part of the available record. 

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  781218  
Current ENL Date: 031007    Current ENL Term: NIF Years  ?????
Current ENL Service: 00 Yrs, 05 Mos, 06 Days ?????
Total Service:  00 Yrs, 05 Mos, 06 Days ?????
Previous Discharges: USAR-030718-031006/NA
Highest Grade: E4
Performance Ratings Available: Yes    No 
MOS: None   GT: 104   EDU: BS Degree   Overseas: None   Combat: None
Decorations/Awards: None
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 1 March 2004, the applicant was charged with having received a lawful command from a MAJ, willfully disobeyed the same x 2, (19 February 2004), and (19 February 2004), having received a lawful command from a CPT, willfully disobeyed the same x 2, (13 February 2004), and (13 February 2004), having received a lawful order from a SFC, willfully disobeyed the same x 3, (19 February 2004), (19 February 2004), and (19 February 2004), having received a lawful order from a 1SG, willfully disobeyed the same, (17 February 2004), having received a lawful order from a SSG, willfully disobeyed the same, (14 February 2004), having knowledge of a lawful order issued by a CPT, failed to obey the same x 2, by wrongfully possessing a digital recorder, (19 February 2004), and and wrongfully going to and eating at the Davis Club, (19 February 2004), assault a SFC X 3, (19 February 2004),  (19 February 2004), and (19 February 2004).  On 1 March 2004, 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 Staff Judge Advovate's memorandum shows that the unit commander recommended disapproval of the applicant's request for discharge in lieu of trial by court-martial, the intermediate and senior intermediate commanders recommended approval of the applicant's request for discharge in lieu of trial by court-martial.  On 12 March 2004, 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. 
      
      The applicant has a Military Police Report dated 20 February 2004, in his Official Military Personnel File.

      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 during the period of enlistment under review, the issues and documents he submitted, the analyst recommend that relief be denied in this case.  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 courts-martial.  In doing so, the applicant admitted guilt to the stipulated or lesser included offenses under UCMJ.  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 this prior to requesting discharge.  Further, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” can not be waived and the applicant is no longer eligible for reenlistment.  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: 15 August 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 4    No change 1   - 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 characterization of service granted was too harsh, and as a result it is inequitable.  Notwithstanding the propriety of the applicant’s discharge, the Board concluded that the applicant’s service should now be described as uncharacterized.  Accordingly, the Board voted to grant partial relief by changing the description of the applicant’s service to uncharacterized.  The Board determined that the reason for discharge was both proper and equitable and voted not to change it.   

















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

XI.  Certification Signature and Date
Approval Authority: 

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

Official: 


CHRISTINE U. MARTINSON				DATE: 10 September 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20060011476

Applicant Name:   Mr.       
______________________________________________________________________


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