Applicant Name:  

Application Receipt Date: 2008/01/18	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and supporting documents submitted by the Applicant.  

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 040403
Discharge Received: 			   Date: 040430   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial By Court-Martial	   RE:     SPD: KFS   Unit/Location: HHC, 9th Engineer Bn, Camp Remagen, Iraq 

Time Lost: None

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

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: 020817    Current ENL Term: 4 Years  ?????
Current ENL Service: 	01 Yrs, 08Mos, 14Days ?????
Total Service:  		05 Yrs, 07Mos, 13Days ?????
Previous Discharges: 	RA 980918-010701/HD
                                       RA 010702-020816/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 63Y20/Track Vehicle Mechanic   GT: 104   EDU: HS Grad   Overseas: Korea, Kosovo, Iraq   Combat: Kosovo (020510-021101), Iraq (040111-040427)
Decorations/Awards: AAM-2, NDSM, GWOTSM, GWOTEM, NM, KDSM, Kosovo CM, ASR, OSR, NCOPDR

V.  Post-Discharge Activity
City, State:  South Ozone Park, NY
Post Service Accomplishments: State of NY Ceritification as  nurse's aide, worked as nurse's aide for 11 months, worked for two years as automotive mechanic, served in Iraq as a civilian contractor for nine and a haf months, has attended college and earned 23 credit hours with a 3.6 GPA, he provides documents to support his post service accomplishments.
VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 3 April 2004, while on deployment to Iraq, the applicant was charged with assault upon an NCO with intent to commit murder (040323), assault upon a commissioned officer with intent to commit murder (040323), and attempted to intentionally injure himself by loading his weapon and attempting to commit suicide (040227).  The applicant’s election of rights document is not contained in the available record and the analyst presumed government regularity in the process.  The applicant would have 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 would’ve admitted guilt to the offense, or a lesser included offense.  Further, the applicant would’ve 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.  On 23 April 2004, 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 the entire applicant’s military records, and the issues and documents 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 several offenses 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.  The analyst acknowledges the applicant's successful transition to civilian life and noted the many accomplishments outlined in his application and/or in the documents with his application.  However, in review of the applicant’s entire service record, the analyst found that these accomplishments did not overcome the reason for discharge and characterization of service granted. Furthermore, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” cannot be waived and the applicant is no longer eligible for reenlistment.  The record does not support the applicant’s contention that his discharge was the result of any medical condition.  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: 14 November 2008         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: NA

VIII.  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.  
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 0    No change 5
Reason -     Change 0    No change 5
(Board member names available upon request)
								         EDGAR J. YANGER			 
								         Colonel, U.S. Army
								         President, Army Discharge Review Board
Issue a new DD Form 214  					
Change Characterization to: 			         
Change Reason to: NA
Other: NA										
RE Code: 									 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080001242
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