Application Receipt Date: 061019	

Prior Review    Prior Review Date: None

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

Issues: See DD Form 293, with attachments.  The applicant stated in essence that he has remorse for the mistake he made six years ago and would like another chance to rejoin the U.S. Army.  He submitted a redacted proceeding document from a previous ABCMR case, a one page statement, and four letters of reference.

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: 001214   
Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial
RE:     SPD: KFS
Unit/Location: NIF 

Time Lost: AWOL for 96 days (DD-214); the record regarding the soldier's return to military control is not in the OMPF.

Article 15s (Charges/Dates/Punishment): None

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  800308  
Current ENL Date: 990311    Current ENL Term: NIF Years  ?????
Current ENL Service: 1 Yrs, 9 Mos, 4 Days Includes 408 days of excess leave from (991103-001214)
Total Service:  1 Yrs, 9 Mos, 4 Days ?????
Previous Discharges: None
Highest Grade: E1
Performance Ratings Available: Yes    No 
MOS: 12B10, Combat Engineer   GT: 93   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: ASR
V.  Post-Discharge Activity
Home of Record: 
Current Address: 
Post Service Accomplishments: Transcripts for criminal justice courses taken at a local community college, letter of reference from a professor, letter of reference from a Judge of the District Court of his State of residence.

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      The applicant’s record is void of the complete facts and circumstances concerning the events that led to his discharge from the Army.  However, the record does contain a DD Form 458 (Charge Sheet), which indicates the applicant was charged with AWOL from (990722-991025).  The unit commander's recommendation to separate the applicant with an under other than honorable conditions discharge and the separation approving authority documentation directing the applicant's discharge from the Army is not a part of the available records and the analyst presumed Government regularity in the discharge process.  On 12 December 2000, Orders 347-0157, DA, HQ, US Army Armor Center, Fort Knox, KY  40121-5000, discharged the applicant from the Regular Army, effective date: 14 December 2000.  Furthermore, the analyst noted that the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which the applicant was not available for signature.  His DD Form 214 indicates that he was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with a characterization of service of under other than honorable conditions and a Separation Code of KFS (i.e., in lieu of trial by court-martial) with a reentry eligibility (RE) code of "4."  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 at any time after the charges are preferred, submit a request for discharge for the good of the service in lieu of trial by court martial.  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 available military records, and the issue he submited, 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, 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.  Therefore, the narrative 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: 21 March 2007              
Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: N/A

Witnesses/Observers: N/A 

Exhibits Submitted: N/A




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 both proper and equitable, and voted not to change it.
























Case report reviewed and verified by: Mr. John Zangas, 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: None

XI.  Certification Signature and Date
Approval Authority: 

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

Official: 


MARY E. SHAW				DATE: 23 March 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20060015667

Applicant Name:  Mr.        
______________________________________________________________________


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