Application Receipt Date: 2006/09/14	

Prior Review    Prior Review Date: None

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

Issues: The applicant states that his discharge was inequitable because it was based on an isolated incident in 10 years of service with no other adverse action.  His defense counsel could not get better results due to his wife’s pregnancy; he also states that he was verbally harassed by an E-9 due to his wife’s situation.

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: 060728
Discharge Received:     Date: 060803   
Chapter: 10    AR: 635-200
Reason: In Lieu of Court Martial
RE:     SPD: KFS
Unit/Location: 557 Maint Co, Fort Irwin, CA 92310 

Time Lost: 304 days, AWOL (050824-060623), apprehended

Article 15s (Charges/Dates/Punishment): 030422, Field Grade, Stole tools and a government vaccum cleaner of a value of $3,725.00.  Reduced to E-4, forfeiture of $872 for 2 months (suspended), 45 days extra duty.  The record contains a CID report dated 3 March 2003.

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  761021  
Current ENL Date: 050217/Re-up    Current ENL Term: 6 Years  ?????
Current ENL Service: 00 Yrs, 07 Mos, 27 Days ?????
Total Service:  08 Yrs, 04 Mos, 22 Days ?????
Previous Discharges: RA 960206-990224/HD; RA 020930-050216/HD
Highest Grade: E-6
Performance Ratings Available: Yes    No 
MOS: 63B10/Wheel Vehicle Mechanic   GT: 98   EDU: HS   Overseas: Iraq   Combat: Iraq (021011-031101), Iraq second tour (041216-050708)
Decorations/Awards: ?????
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 indicates that on 28 July 2006, the applicant was charged with AWOL (050824-060623) and wrongfully having sex with a woman not his wife (051201-060101).  On 28 July 2006, 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.  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 the applicant’s military records, and the issues 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 noted the applicant's issues and determined that the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review.  Therefore, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief.
      

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 24 October 2007              
Location: Washington, D.C.

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.  Even though a single incident, the Board concluded that the discrediting entry constituted a departure from the standards of conduct expected of non-commissioned officers in the Army.  The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  Having examined all the circumstances, the Board determined that the applicant's single incident of misconduct did indeed adversely affect the quality of service, brings discredit on the Army, and was prejudicial to good order and discipline.  This single incident of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge. The Board, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief.


Case report reviewed and verified by: Alejandro Champin, 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: 


CHRISTINE U. MARTINSON			DATE: 25 October 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20060013221

Applicant Name:  Mr.        
______________________________________________________________________


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