Application Receipt Date: 060828	

Prior Review    Prior Review Date: Records/2005/05/11
                                                               Records/2004/01/07

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

Issues: See DD Form 293 with five (5) enclosures

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: 030305
Discharge Received:     Date: 030328   
Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial
RE:     SPD: KFS
Unit/Location: 63rd Engineer Company, 36th Engineer Group, Fort Benning, GA  31905 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 020205, Failed to go to his appointed place of duty x 2, (011024), (011220) and without authority, left his appointed place of duty (020110), (Company Grade)  


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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  780807  
Current ENL Date: 000211    Current ENL Term: 4 Years  ?????
Current ENL Service: 3 Yrs, 1 Mos, 18 Days ?????
Total Service:  3 Yrs, 1 Mos, 18 Days ?????
Previous Discharges: None
Highest Grade: E4
Performance Ratings Available: Yes    No 
MOS: 62E1P Heavy Construction Equipment   GT: 90   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: 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 6 February 2003, the applicant was charged with failing to go to his appointed place of duty x 4, (021112), (021030), (020930), (020403), without authority, go from his appointed place of duty on various divers occasions, between on or about (030102-030205), disobeyed a lawful order from a SGT (020514), did tret with contempt, a SGT by yelling, rolling his eyes and saying to him "you are a bitch" (020918), disobeyed a lawful order from a SFC (021104).  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 7 March 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, 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, eligibility for veteran's benefits to include educational benefits under the Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.  Therefore, the reason for discharge and the characterization of service remains both proper and equitable.  
      
      Subsequently, the applicant was heard by the Army Discharge Review Board on 11 May 2005, and was granted partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.   
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
      

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 17 April 2007              
Location: Chicago, IL

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

Exhibits Submitted: The applicant submitted a character reference letter in support of his testimony.




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, hearing his testimony and considering the analyst’s recommendation and rationale, the Board determined that the characterization of service was too harsh, and as a result it is inequitable.  The Board does not condone the applicant’s misconduct; however, determined that the nature of the offense and the circumstances surrounding the discharge, mitigated the discrediting entry in his service record.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to fully honorable.  However, the Board determined that the reason for discharge was both proper and equitable, and voted not to change it.  This action entails a restoration of grade to PFC/E-3.   


















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: PFC/E-3

XI.  Certification Signature and Date
Approval Authority: 

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

Official: 


MARY E. SHAW				DATE: 4 May 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20060012207

Applicant Name:  Mr.       
______________________________________________________________________


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