Applicant Name: 
Application Receipt Date: 070720	

Prior Review    Prior Review Date: None

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

Issues: See enclosed DD Form 293 submitted by the applicant.

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: NA
Discharge Received:     Date: 950918   
Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial
RE:     SPD: KFS
Unit/Location: A Co, 1/5th Cav, 1st Cav Div, Fort Hood, TX 

Time Lost: AWOL X 3 for 62 days (950114-950115, 950117-950126, 950207-950315), surrendered.  The applicant's DD Form 214 under review makes reference to the applicant having time lost (950729-950811), however, the record is void of any documents to support this period of time lost.

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

Court-Martials (Charges/Dates/Punishment): 950524, SPCM, AWOL X 4 (950114-950116, 950117-950127, 950131-950201, 950205-950315), willfully disobeying a lawful command (950408), wrongful use of cocaine between (950125 and 950201), and wrongful possession of some amount of marijuana (950119).  The applicant was sentence to 75 days confinement, forfeiture of $200.00 per month for two months, reduction to E-1, and BCD.  The findings of gulity was approved and the sentence was disapproved.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Year/Month:  1968/07  
HOR City, State: Jackson, MS
Current ENL Date: 950103    Current ENL Term: 03 Years  ?????
Current ENL Service: 00 Yrs, 06Mos, 13Days ?????
Total Service:  07 Yrs, 10Mos, 21Days ?????
Previous Discharges: RA-870823-900904/HD
                                      ARNG-900905-950102/
Highest Grade: E4
Performance Ratings Available: Yes    No 
MOS: 11M10/FV Infantryman   GT: 81   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: AGCM, NDSM, ASR

V.  Post-Discharge Activity
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
           The evidence of record shows that on 3 May 1995, the applicant was charged with AWOL X 4 (950114 to 950116, 950117 to 950127, 950131 to 950201, and 950205-950315), willfully disobeying a lawful command (950408), wrongful use of cocaine between (950125 and 950201), and wrongful possession of some amount of marijuana (950119).  A memorandum dated 19 June 1995, shows that the applicant requested administrative separation in lieu of courts-martial, however, that document is not part of the available records.  The memorandum further indicates that the applicant's request was disapproved, and his defense counsel requested reconsideration of the applicant's request for separation in lieu of courts-martial.  The unit and intermediate commanders recommended disapproval of the applicant request for discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  On 26 June 1995, 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.

On 14 July 1995, the applicant's findings of guilty was approved and the sentence was disapproved.





      

      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 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 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 offenses under the UCMJ.  The analyst noted that 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 that prior to requesting discharge.  Furthermore, the analyst noted the applicant’s issue and determined that the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review.  In view of the foregoing, the analyst determined that the reason for discharge was both proper and equitable and recommends to the Board to deny relief.
      
      
      
      
      
      
      
      
      
      
      
      
      
      

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 25 July 2008              
Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: NA




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 0    No change 5   - 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 and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable, and voted to deny relief.























								        
X.  Board Action Directed
No Change 
Issue a new DD Form 214  
Change Characterization to:    
Change Reason to: NA
Other: NA
RE Code:  
Grade Restoration:   No   Yes  Grade: NA

XI.  Certification Signature and Date
Approval Authority: 

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

Official: 


CHRISTINE U. MARTINSON			DATE: 31 July 2008
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20070009993
______________________________________________________________________


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