Application Receipt Date: 060908	

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:   Records Review/070205

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Original Character of Discharge
Unit CDR Recommended Discharge:    Date: NIF
Discharge Received:     Date: 040915   
Chapter: 10    AR: 635-200
Reason: In Lieu Of Trial By Court-Martial
RE:     SPD: KFS
Unit/Location: HHD 87th CSB Fort Stewart, GA 31314 

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:  680925  
Current ENL Date: 000127    Current ENL Term: Indef Years  ?????
Current ENL Service: 04 Yrs, 07Mos, 18 Days ?????
Total Service:  18 Yrs, 00 Mos, 19 Days ?????
Previous Discharges: RA-860827-900214/HD
                                      RA-900215-931012/HD
                                      RA-931013-960422/HD
                                      RA-960423-000126/HD
Highest Grade: E7
Performance Ratings Available: Yes    No 
MOS: 92W40 Water Treatment Spec   GT: 103   EDU: HS Grad   Overseas: Korea/Hawaii   Combat: Kuwait/Iraq (020901-030826)
Decorations/Awards: BSM, MSM (3), ARCOM (5), AAM (5), AGCM (5), NDSM (2), SWASM w/2 BSS, GWOTEM, GWOTSM, KDSM, HSM (2), NCOPDR w/2, ASR, OSR (2), KLM (SA), KLM (K), PUC 
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 reveals that on 1 June 2004, the applicant was charged with failure to obey a lawful general regulation, by wrongfully engaging in a prohibited relationship with a PFC, on diverse occasions, between on or about (030915) and between on or about (040408), maltreat a PFC, on diverse occasions, between on or about (030915) and between on or about (040408), maltreat a PFC, on diverse occasions, between on or about (031101) and between on or about (040408), and maltreat a PFC, on diverse occasions, between on or about (030901) and between on or about (040408.)  On 12 August 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 courts-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 17 August 2004, the separation authority disapproved the request for discharge in lieu of trial by court-martial.  The chain of command recommended approval of the Chapter 10 request with an under other than honor conditions discharge.  On 24 August 2004, the separation authority approved the discharge and directed issuance of an Under Other Than Honorable Conditions Discharge.  The applicant was to be reduced to the lowest enlisted rank.
       
      An AR 15-6 investigation was conducted on 05 May 2004.
      

      b.  Legal Basis for Separation:  
      Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 requests 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 found that the discharge was improper.  On 17 August 2004, the separation authority disapproved the request for discharge in lieu of trial by court-martial.  On 24 August 2004, the separation authority approved the discharge and directed issuance of an Under Other Than Honorable Conditions Discharge.  The doctrine of administrative finality states once an official makes a decision and it is announced or published, he cannot change the decision without specific legal authority or an authorized request to reconsider.  In view of the aforementioned the discharge was improper.  Accordingly, the analyst reccomends relief in the form of an upgrade of characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority.  This action does not entail a change to the reentry eligibility (RE) code, however, the Board can consider it.  This action entails a restoration of grade to SFC/E7.       

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 070205              
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     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 improper.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority.  This action does not entail a change to the reentry eligibility (RE) code.  However, this action entails a restoration of grade to SFC/E7  



















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: Secretarial Authority under provisions of Chapter 5, AR 635-200.
Other: None
RE Code:  
Grade Restoration:   No   Yes  Grade: SFC/E7

XI.  Certification Signature and Date
Approval Authority: 

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

Official: 


MARY E. SHAW				DATE: 070209
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20060012935

Applicant Name:  Mr.        
______________________________________________________________________


Page 5 of 5 pages