Application Receipt Date: 080123	

Prior Review    Prior Review Date: 050912/Records Review

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: NIF
Discharge Received:     Date: 020823   
Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial
RE:     SPD: KFS
Unit/Location: HHC, 2-5 CAV Regt, Fort Hood, TX 

Time Lost: AWOL x 2 for 18 days (011221-020102), and (020328-020403), mode of return unknown. 

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

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
DOB:  811019  
Current ENL Date: 010129    Current ENL Term: 3 Years  ?????
Current ENL Service: 01  Yrs, 06 Mos, 05 Days ?????
Total Service:  01  Yrs, 06 Mos, 05 Days ?????
Previous Discharges: None
Highest Grade: E-2
Performance Ratings Available: Yes    No 
MOS: 11C10 Indirect Fire Infantryman   GT: 90   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, ASR
V.  Post-Discharge Activity
Home of Record: Hinton, WV
Current Address: 

Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      The evidence of record shows that on 18 March 2002, the applicant was charged with being disrespectful in language toward a CPL (020208), disrespectful in language and deportment toward a SGT (011106), wrongful use of marijuana x 2 between (011208-020107), and between (010930-011029), assaulted PVT MDJ (020214), AWOL (011221-020103), failure to report x 7 (011221), (020124), (020124), (020125), (020125), (020129), (020205), and disobeyed a lawful command from a CPT (020311).  On 20 May 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.  In the Staff Judge Advocate's Memorandum, dated 31 May 2002, the applicant's chain of command and the staff judge advocated recommended approval of the request for discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial, with an under other than honorable conditions discharge.  On 31 May 2002, the General Court-Martial convening authority disapproved the request for discharge under the provisions of Chapter 10, AR 635-200 and the processing of the court-martial charges will not be further delayed.  On 18 June 2002, the applicant again 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.  In the Staff Judge Advocate's Memorandum, dated 15 July 2002, the applicant's chain of command and the staff judge advocated recommended approval of the request for discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial, with an under other than honorable conditions discharge.  On 15 July 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 during the period of enlistment under review and the issues 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 found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In view of the foregoing, 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: 8 September 2008              
Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: The American Legion
                 Attn:  Ms. Queen Baker
                1608 K Street NW
                Washington, DC 20006

Witnesses/Observers: Mr. Robert Smith (Father)
                                       Mr. Crawford (Family Friend) 

Exhibits Submitted: The applicant submitted two pages of additional documents in support of his personal appearance hearing. 




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 3    No change 2   - 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 characterization of service is too harsh and as a result it is inequitable.  The Board found that the circumstances surrounding his discharge (i.e.,  the applicant's was diagnosed with a personality disorder that made it difficult for him to adapt) 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.  This action entails a restoration of grade to PV2/E-2. 
















Case report reviewed and verified by: 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: PV2/E-2

XI.  Certification Signature and Date
Approval Authority: 

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

Official: 


CHRISTINE U. MARTINSON			DATE: 10 September 2008
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080001427

Applicant Name:  
______________________________________________________________________


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