Application Receipt Date: 061024	

Prior Review    Prior Review Date: None

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

Issues: The applicant stated, "My discharge was unfair and unjust based on a commanders decision to act on impulse rather than to wait to see the true findings of the matters at hand.  I appealed the AK-15 decision ART 128 assault consummated by battery.  The [ UCMJ actions were ] followed by many other charges due to the unwaned letter sent months after the charge AR-15 128 by the case review committee (CRC).  I informed my chain of command that the charges were unfair and unjust.  My Btry commander handed me the CRC memorandum as to inform me that the Battalion Commander did in fact charge me with unfair and unjust UCMJ punishment.  I have enclosed many documents to set my case clear and would like to see the militry justice system prevail as I uphold the honor as a non-commissioned officer in the U.S. Army.  I wish to join the Army Guard if my RE-code is changed. 

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: 030609
Discharge Received:     Date: 030813   
Chapter: 10    AR: 635-200
Reason: In Lieu of Trail by Court-Martial
RE:     SPD: KFS
Unit/Location: Headquarters and Headquarters Battery, 1st Battalion, 3d Air Defense Atrillery, Fort Stewart, GA 31414 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 020912-wrongfully assault a female (his wife) by grabbing her by the throat with his hand on 020803; Field Grade.

2nd Article 15:  021002-failure to go to appointed place of duty X3 on (020904); Company Grade. 
Court-Martials (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  731019  
Current ENL Date: 000406    Current ENL Term: 3 Years  ?????
Current ENL Service: 3 Yrs, 4 Mos, 8Days ?????
Total Service:  8 Yrs, 5 Mos, 29 Days ?????
Previous Discharges: RA-950215-970330/HD
                                      RA-970331-000405/HD

Highest Grade: E-5
Performance Ratings Available: Yes    No 
MOS: 14J10, Early Waning System Op   GT: 99   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: AAM (3), GCM, NDSM, NCOPDR, ASR, OSR
V.  Post-Discharge Activity
Home of Record: 
Current Address: 
Post Service Accomplishments: None were submitted.

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      The evidence of record shows that on 24 July 2003, the applicant was charged with failure to go at the dates and times prescirbed to his place of duty for PT formation at Bldg. 731 on (030321, 030326, and 030605); failure to go at the dates and times prescirbed to his place of duty for work call formation at Bldg 731 on (030414, 030605, 030609, and 030616); having received a lawful command from a 1LT, his superior commissioned officer, to stand at parade rest, did willfully disobey the same on (030607); having received a lawful command from a 1LT, his superior commissioned officer, to sign out with Staff Duty prior to leaving the Battalion area, did willfully disobey the same on (030607); did take off his BDU top, throw it to the ground and lunge toward an SFC, his superior noncommissioned officer who was in the execution of his duties on (030605); willfully fail to disobey an SFC, his superior noncommissioned officer, by failing to obey an order to "at ease," on (030605); was disrespectful in language and deportment toward a SFC, his superior noncommissioned officer who was in the execution of his duties on (030605); with intent to deceive, make to a 1LT, a false statement on (030605); and with intent to deceive, make to a SFC, a false statement on (030605).  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 and intermediate commanders recommended approval of an under other than honorable conditions discharge.          On 1 August 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 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 military records, and the issue he submitted, the analyst found a mitigating factor that would merit an upgrade of the characterization of service to general under honorable conditions.  This recommendation was made after full consideration of his faithful and honorable service, as well as his record of misconduct.  While the applicant's misconduct is not condoned, the evidence in this case supports a conclusion that the characterization of service was too harsh, and as a result it is now inequitable.  The analyst found that the overall length and quality of the applicant's service mitigated the discrediting entries in his service record.  However, the narrative reason for discharge remains both proper and equitable and the analyst recommends to the Board not to change it.  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.  This action entails a restoration of rank/grade to PFC/E-3.
      
VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 18 April 2007              
Location: Chicago, IL

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

Case Number AR20060015144

Applicant Name:  Mr.        
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