Applicant Name:  ?????

Application Receipt Date: 2008/03/17	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See enclosed DD Form 293 and attached documents (20) 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: NIF
Discharge Received: 			   Date: 031230   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: HQ & HQ Company, 489th Engineer Battalion, 82nd Airborne Division, Al Fallujah, Iraq, APO AE 09384 

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:  36
Current ENL Date: OAD/030217    Current ENL Term: 1 Years  ?????
Current ENL Service: 	0 Yrs, 10 Mos, 14 Days ?????
Total Service:  		18 Yrs, 5 Mos, 0 Days ?????
Previous Discharges: 	USAR 850731-850910/NA
                                       ADT    850911-860201/Unchar
                                       ARNG 860202-010530/HD
                                       USARCG 010531-030216/NA
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 21B1H Combat Engineer/Network Switching Sys Op Maint   GT: 99   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq (030421-031216)
Decorations/Awards: NDSM, AFRM/w M Dev, ASR, ARCOTR, C/Ach, L/C (1)

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 22 October 2003, the applicant was charged with through design, missed the movement of the 489th Engineer Battalion Transport to the airport, which he was required in the course of duty to move (031005), behaved himself with disrespect toward a Major (031006) and willfully disobeyed a lawful order from a SSG (031005).  On 28 October 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 and intermediate commanders recommendation is not part of the available record; however, on 16 November 2003, the separation authority indicated in his memorandum; after careful consideration of the charge and specification, supporting documentation, the recommendation of the chain of command and the Staff Judge Advocate, approved the request for discharge 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, supporting documents 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; however, the method in which another soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.  Further, changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The Defense Discharge Review Standards specifically state that no factors should be established that requires automatic change or denial of a change in discharge.  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: 21 January 2009         Location: Washington, DC

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 characterization of service was too harsh and as a result, it is inequitable.  The Board found that the overall length and quality of the applicant's service, to include his combat service mitigated the discrediting entries in the service record.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to to fully honorable and a change to the narrative reason for separation to Secretarial Authority.  This action entails a change to the reentry eligibility (RE) code to "1," and a restoration of grade to "SGT/E-5." 
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
Reason -     Change 4    No change 1
(Board member names available upon request)
								         EDGAR J. YANGER			 
								         Colonel, U.S. Army
X.  Board Action Directed					         President, Army Discharge Review Board
Issue a new DD Form 214  					
Change Characterization to: 			         
Change Reason to: "Secretarial Authority under the provisions of Chapter 5, AR 635-200. 
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: SGT/E-5
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080004294
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