Application Receipt Date: 070105	

Prior Review    Prior Review Date: None

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

Issues: See DD Form 293.

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: 040831
Discharge Received:     Date: 041015   
Chapter: 14    AR: 635-200
Reason: Misconduct
RE:     SPD: JKK
Unit/Location: HHC 2nd Bn 34th Armor Fort Riley KS 66442 

Time Lost: Civilian Confinement-24 days (040803-040826), and AWOL-18 days (030801-030818).  Mode of return to military control is not in file.  The applicant had a total of 42 days lost time.

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

Court-Martials (Charges/Dates/Punishment): SCM-040803, conspiracy to distribute cocaine, between on or about (031001-031022), AWOL, (030801-030819), without authority go from his place of duty, (031120), and attempted to fraudulently separate himself from the Army, by knowingly presenting false documentation that he was married to a another man, (030813. He was sentenced to confinement for 30 days and forfeiture of $795.00 pay.   

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  840412  
Current ENL Date: 020708    Current ENL Term: 4 Years  item 12a on DD form 214, date entered active duty this period is incorrect, should read 020708, see enlistment contract.
Current ENL Service: 02 Yrs, 01 Mos, 25 Days ?????
Total Service:  02 Yrs, 01 Mos, 25 Days ?????
Previous Discharges: None
Highest Grade: E3
Performance Ratings Available: Yes    No 
MOS: 11C1P Indirect Fire Infantryman   GT: 114   EDU: HS Letter   Overseas: None   Combat: None
Decorations/Awards: NDSM, GWOTSM, ASR
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:
      Evidence of record shows that on 27 August 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, AR 635-200, by reason of misconduct—commission of a serious offense ( fraudulently try to separate himself from the U.S. Army by knowingly presenting false documentation stating he was married to another man, when in fact he was not, (030813), conspiracy to distribute cocaine, on or about (031001) and on or about (031022), AWOL, (030801-030819), and without authority go from his appointed place of duty at the multi purpose range complex barracks at building 2, (031120), with an under other than honorable conditions discharge.  He was advised of his rights.  The applicant consulted with legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board, and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an  under other than honorable conditions discharge. The senior intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge.  On 6 October 2004, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of under other than honorable conditions.  The applicant was to be reduced to the lowest enlisted rank. 
      The applicant has a CID Report of Investigation dated 12 March 2004 in his Official Military Personnel File.   

      b.  Legal Basis for Separation:  
      Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

      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 and the issue he submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  The applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  By his misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  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 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: 16 April 2007              
Location: Chicago, IL

Did the Applicant Testify?  Yes     No  

Counsel: Yes [Redacted]

Witnesses/Observers: No 

Exhibits Submitted: None




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 discharge was both proper and equitable and voted not to change it.





















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

Case Number AR20070000367

Applicant Name:  Mr.        
______________________________________________________________________


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