Applicant Name:

Application Receipt Date: 070815	

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: 030630
Discharge Received:     Date: 030808   
Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial
RE:     SPD: KFS
Unit/Location: B Co, 187th Med Bn, Ft Sam Houston, TX 

Time Lost: AWOL 71 days (030312-030521), surrendered.

Article 15s (Charges/Dates/Punishment): None.  Unit commander's memorandum dated 030630 states Applicant received an Article 15 but no further information exists in the record of evidence.

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Year/Month:  79/03  
HOR City, State: Rochester, NY
Current ENL Date: 021022    Current ENL Term: 5 Years  ?????
Current ENL Service: 00 Yrs, 07 Mos, 06 Days ?????
Total Service:  00 Yrs, 07 Mos, 06 Days ((The Applicant was placed on excess leave for 71 days (030530-030808)).
Previous Discharges: None
Highest Grade: E-3
Performance Ratings Available: Yes    No 
MOS: NA   GT: 127   EDU: 14 yrs   Overseas: None   Combat: None
Decorations/Awards: None

V.  Post-Discharge Activity
Post Service Accomplishments: None listed by the Applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      The evidence of record shows that on 29 May 2003, the Applicant was charged with being AWOL (030312-030522).  On 30 May 2003, 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 the Chapter 10 request with an under other than honorable conditions discharge.  On 18 July 2003, the separation authority approved the Chapter 10 request 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 a careful review of all the Applicant’s military records, 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 indicates that 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 issues 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.  Additionally, Army Regulation 635-200 provides in pertinent part, that a soldier is in entry-level status for the first 180 days of continuous active duty.  Because the Applicant's active duty time exceeded 180 days, the Applicant was no longer in entry-level status.  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. and is Therefore, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief.

VII.  Summary of Army Discharge Review Board Hearing 

Type of Hearing: 			Date: 17 September 2008              
Location: Washington, D.C.

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: 	       	Proper	 	Improper	
						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: 

EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board

Official: 


CHRISTINE U. MARTINSON			DATE: 17 September 2008
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20070011291
______________________________________________________________________


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