Application Receipt Date: 061211	

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: 040427   
Chapter: 10    AR: 635-200
Reason: In Lieu Of Trail By Court-Martial
RE:     SPD: KFS
Unit/Location: C Company 1st Bn 8th Infantry Fort Carson, CO 80913-2544  

Time Lost: NIF

Article 15s (Charges/Dates/Punishment): NIF

Court-Martials (Charges/Dates/Punishment): NIF

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  741025  
Current ENL Date: 020821    Current ENL Term: 3 Years  ?????
Current ENL Service: 01 Yrs, 08 Mos, 07 Days ?????
Total Service:  01  Yrs, 08 Mos, 07 Days ?????
Previous Discharges: None
Highest Grade: E3
Performance Ratings Available: Yes    No 
MOS: 11B10 Infantryman   GT: 94   EDU: HS Grad   Overseas: SWA   Combat: Kuwait/Iraq (030806-040403)
Decorations/Awards: NDSM, GWOTEM, GWOTSM, ASR, CIB, EIB
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 specific facts and circumstances leading to the applicant’s discharge from the Army are not contained in the available records.  However, the record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's signature.  His DD Form 214 indicates that he was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial court-martial, with a characterization of service of under other than honorable conditions.  Furthermore, the DD Form 214 shows a Separation Code of KFS ( i.e., in lieu of trial by court-martial) with a reentry eligibility (RE) code of "4."  Evidence of record shows that on 27 April 2004, Orders 118-0017, DA, HQ, 7th Infantry Division, Fort Carson, Colorado, discharged the applicant from the Regular Army, effective date:  27 April 2004.  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 available records for the period of enlistment under review, the issue and documents he submitted, the analyst recommend that relief be denied in this case.  The applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army.  The analyst noted that the applicant’s record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge and the analyst presumed Government regularity in the discharge process.  The evidence of record shows the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with an under other than honorable conditions discharge.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ), with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request 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.  In the absence of information to the contrary, it is presumed that all 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 would have been aware of that prior to requesting discharge.  Therefore, the analyst determined that the 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: 15 May 2007              
Location: Tampa, FL

Did the Applicant Testify?  Yes     No  

Counsel: yes [redacted]

Witnesses/Observers: Wife 

Exhibits Submitted: The applicant submitted four additional documents in support of his personal appeareance hearing.




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, the Board found that the applicant’s combat service, and the circumstances surrounding the discharge process 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 general, under honorable conditions. However, the Board determined that the reason for discharge was both proper and equitable, voted not to change it.  This action entails a restoration of grade to PFC/E3.      















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: PFC/E3

XI.  Certification Signature and Date
Approval Authority: 

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

Official: 


MARY E. SHAW				DATE: 21 May 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20060017132

Applicant Name:  Mr.       
______________________________________________________________________


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