Application Receipt Date: 070126

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: 011130
Discharge Received:     Date: 020201
Chapter: 10    AR: 635-200
Reason: In Lieu Of Trial By Court-Martial
RE:     SPD: KFS
Unit/Location: HHC, 2nd Battalion, 69th Armor Brigade, 3rd Infantry Divison
(Mechanized), Fort Benning, GA 31905

Time Lost: AWOL-37 days, from (010808-011222), based on the documentation
in the applicant's file, (Article 15, DA Form 4187, and memo dated 011012);
also, the applicant was placed in pre-trial confinement, see memos dated,
(011025) and (011031).

Article 15s (Charges/Dates/Punishment): 010913-AWOL from (010808-010913),
(Company Grade).

010723-Wrongfully used marijuana x 2, between or or about (010120) and
(010220), and between on or about (010408) and (010520), (Field Grade).

010213-Without authority, absented himself from his place of duty, (00127),
the continuation sheet is not part of the available record, (Company
Grade).

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

Counseling Records Available: Yes    No

IV.  Soldier’s Overall Record
DOB:  800509
Current ENL Date: 980721    Current ENL Term: 4 Years       
Current ENL Service: 03  Yrs, 01 Mos, 26 Days      
Total Service:  03  Yrs, 01 Mos, 26 Days      
Previous Discharges: None
Highest Grade: E4
Performance Ratings Available: Yes    No
MOS: 91G10 Behavioral Science Spec   GT: 109   EDU: HS Grad   Overseas:
Korea   Combat: None
Decorations/Awards: ASR, OSR
V.  Post-Discharge Activity
Home of Record: Blades, DE 19973
Current Address: 209 E 5th Street
Blades DE 19973
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      The evidence of record shows that on 15 November 2001, the applicant
was charged with wrongful distribution of marijuana, on or about 28
September 2001, wrongfully possess approximately one gram of marijuana x 2,
on or about 28 September 2001 and on or about 24 October 2001, wrongfully
used marijuana x 2, on or about 28 September 2001 and between on or about
23 October 2001 and and on or about 24 October 2001, and having been
restricted by a person authorized to do so, did on divers occasions, break
said restriction.  On 26 November 2001, 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.  The intermediate and senior intermediate
commanders recommended approval of an under other than honorable conditions
discharge, and forwarded the separation action to the approving authority.
However, the separation authority's documentation approving the applicant's
discharge with an under other than honorable conditions discharge is not
part of the available record and the analyst presumes Government regularity
in the discharge process.  Evidence of record shows that on 23 January
2002, DA, HQ, United States Army Infantry Center, Fort Benning, GA, Orders
023-2206 discharged the applicant from the Regular Army, effective date: 29
January 2002.


      The applicant has CID Report of Investigation dated 29 October 2001,
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 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 and the issue 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 court-martial.  In
doing so, the applicant admitted guilt to the stipulated or lesser included
offense 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.  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.  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: 19 September 2007
Location: Washington, DC

Did the Applicant Testify?  Yes     No

Counsel: Mr. Lawrence Provost
                The American Legion
                1608 K Street NW
                 Washington, DC 20006

Witnesses/Observers: Victor L. Timmons (Father)

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 4    No change 1   - Character
                                   Change 0    No change 5   - 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 does not condone the
applicant’s misconduct; however, determined that the characterization of
service was too harsh, and as a result it is now inequitable.  The Board
found that the overall length of the applicant’s service  and his post
service accomplishments, mitigated the discrediting entries in his service
record.  Accordingly, the Board voted to grant partial 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 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:


CHRISTINE U. MARTINSON            DATE: 24 September 2007
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder