Application Receipt Date: 070122	

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: 060726
Discharge Received:     Date: 060816   
Chapter: 10    AR: 635-200
Reason: In Lieu Of Trial By Court-Martial
RE:     SPD: KFS
Unit/Location: D Company 1st Bn 50th Inf Fort Benning, GA 31905  

Time Lost: AWOL-95 days (051127-060301), surrendered to military authorities at Fort Benning, GA.  Applicant was directed to proceed to Fort Knox, Ky and failed to comply. AWOL again for 102 days (060305-060614), apprehended by civil authorities at Vestavia Hills, AL on 15 June 2006 and transferred to for Knox, Ky.  Applicant was AWOL for a total 197 days.     

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

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  860802  
Current ENL Date: 060419    Current ENL Term: 3 Years  applicant was placed on excess leave for 37 days (060711-060816).
Current ENL Service: 00 Yrs, 04 Mos, 10 Days ?????
Total Service:  00 Yrs, 04 Mos, 10 Days ?????
Previous Discharges: None
Highest Grade: E2
Performance Ratings Available: Yes    No 
MOS: None   GT: 109   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: None
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 shows that on 22 June 2006, the applicant was charged with AWOL (051127-060301) and (060305-060614).  On 22 June 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 recommended approval of an under other than honorable conditions discharge.  On 28 July 2006, 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 careful review of all the applicant's military records during the period of enlistment under review, the issues and documents he submitted, the analyst recommend that the applicant's request for an upgrade of his characterization of service be denied.  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 courts-martial.  In doing so, the applicant admitted guilt to the stipulated or lesser included offenses under UCMJ.  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 this prior to requesting discharge.  Further, 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.  The analyst determined that the reason for discharge and the characterization of service were 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: No

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 characterization of service was too harsh and as a result, it is inequitable. The Board noted that the applicant was in entry-level status when he returned from a period of AWOL (i.e., he had completed less than 180 days of continuous active duty).  The applicant was charged with AWOL and while still in an entry-level status voluntarily requested discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial.  In essence the applicant’s separation action was initiated while the applicant was in an entry-level status and command had the option to characterize his service under other than honorable conditions or to describe his service as uncharacterized.  Notwithstanding the propriety of the applicant’s discharge, the Board concluded that the applicant’s service should now be described as uncharacterized.  The Board found that the circumstances surrounding the discharge mitigated the discrediting entries in his service record.  Accordingly, the Board voted to grant reliefin the form of an upgrade of the characterization of service to unchcharacterized.  However, the Board determined that the reason for discharge was both proper and equitable and voted not to change it.  This action does not entail a restoration of grade.    







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 AR20070001084

Applicant Name:  Mr.        
______________________________________________________________________


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