Applicant Name:  

Application Receipt Date: 2007/09/04	

Prior Review    Prior Review Date: None

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

Issues: See DD Form 293 and attached documents 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: NIF
Discharge Received:     Date: 020322   
Chapter:   10      AR: 635-200
Reason: In lieu of trial by court martial
RE:     SPD: KFS  
Unit/Location: HHC, 115th FLD Hosp, Warrior Bde, Ft Polk, LA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): NIF

Court-Martials (Charges/Dates/Punishment): NIF

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Year/Month:  6901  
HOR City, State: North Little Rock, AR
Current ENL Date: 011001    Current ENL Term:   3   Years  ?????
Current ENL Service:   00   Yrs,  05 Mos,  22 Days ?????
Total Service:   02  Yrs,  02 Mos,   04 Days ?????
Previous Discharges: ARNG 991229-010930  HD 
RFAD 000802-010227  HD
Highest Grade: E3  
Performance Ratings Available: Yes    No 
MOS: 52C10  Utility Equipment Repairer   GT:  94    EDU: HS Grad   Overseas: None	   Combat: None	
Decorations/Awards: ASR

V.  Post-Discharge Activity
Post Service Accomplishments: Applicant states he is married (marriage certificate) with 5 children (and one on the way), he owns a trucking business (certificates and registration).

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      The evidence of record shows that on 5 March 2002, the applicant was charged with wrongful use of cocaine (020126-020130).  On 8 March 2002, 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's recommendation is not in the record however, the intermediate commander recommended approval of an under other than honorable conditions discharge.  On 15 March 2002, the separation authority approved the discharge with a characterization of service of under other than honorable conditions.  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 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 the record includes a DA Form 3881 (Rights Warning) signed by the applicant, a DA Form 2823 (Sworn Statement) where the applicant admits to use of cocaine, and a DD Form 2624 (Specimen Custody) document reflecting the applicant was given a command directed (CO) urinalysis on 30 January 2002.  A command directed urinalysis is protected under limited use provisions.  The applicant's sworn statement sufficiently establishes probable cause (PO) for the urinalysis and the analyst believes the command intended to administer the urinalysis under probable cause basis.  The urinalysis is not referenced in the charge sheet, command's recommendation, or separation authority's approval of the discharge and the analyst believes the urinalysis was coded wrong.  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.  The analyst noted the applicant's issue, however, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  Therefore, the analyst determined that 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 July 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: 	       	Equitable	 	Inequitable	

DRB voting record:  		      Change    1      No change    4     - 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: 18 July 2008
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20070012339
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