Applicant Name:  ?????

Application Receipt Date: 2008/03/31	Prior Review:     Prior Review Date: NA     

I.  Applicant 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?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 070315
Discharge Received: 			   Date: 070425   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: A company, 1st Battalion, 46th Infantry Regiment, Fort Knox, KY 40121 

Time Lost: AWOL x 1 for 580 days (050629-070130). Surrendered to military authorities at Fort Irwin, CA and was transferred to Fort Sill, OK 73503-5100

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:  41
Current ENL Date: 050502    Current ENL Term: 8 Years  ?????
Current ENL Service: 	0 Yrs, 4 Mos, 22 Days Includes 76 days of excess leave from (070209-070425)
Total Service:  		2 Yrs, 10 Mos, 23 Days ?????
Previous Discharges: 	USN 021030-040908/GD
                                       USNR 040909-050330/NA
                                       ARNG 050331-050501/NA
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: None   GT: NIF   EDU: BS Degree   Overseas: None   Combat: None
Decorations/Awards: None

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 7 February 2007, the applicant was charged with AWOL from (050629-070130).  On 8 February 2007, 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 she understood that she 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 submitted a statement in her own behalf.  The unit commander recommended approval of an under other than honorable conditions discharge.  On 28 March 2007, the separation authority approved the discharge with an uncharacterized and an under other than honorable conditions discharge as annotated by his initials and signature.  The applicant was to be reduced to the lowest enlisted rank. 
       
       The analyst noted that the applicant in her statement dated 8 February 2007, requested an uncharacterized or a general discharge because she stated "that with an under other than honorable discharge, she fear that she would not be able to receive continued treatment for the conditions that may be service related.  With a general or uncharacterized discharge, she should be able to continue to receive this important treatment."  Further, the applicant's unit commander in her recommendation for separation dated 15 March 2007, indicated in writing a notation that "prior naval service does not count in determining entry-level status."  The evidence of record shows that at the time of the applicant's AWOL, she was in an entry level status (i.e., she had completed less than 180 days of continuous active duty) and after the separation authority reviewed the separation packet initialed off on an uncharacterized and an under other than honorable conditions discharge, which would have administratively reduced the applicant to PV1/E-1.  The DD Form 214 item 4a shows the applicant was retained in the grade/rank of "SPC/E-4, and item 24 characterization of service shows that the applicant was issued an uncharacterized discharge.  Based on the evidence in this case the analyst determined that the uncharacterized discharge was appropriate.  

       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 she submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  The analyst noted from the evidence of record that the applicant received an uncharacterized separation while in an entry-level status (ELS).  The separation authority approved the applicant's discharge as entry-level status, with the description of service as uncharacterized.   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.  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.  The purpose of the entry-level status is to provide the soldier a probationary period.  Soldiers who are found to lack the necessary motivation, adaptability, self-discipline, ability, or attitude to become productive soldiers may be expeditiously separated while in entry-level status and that a soldier’s service will be uncharacterized when her separation is initiated while the soldier is in entry level status.  A general discharge is not authorized under ELS conditions.  A fully honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  The analyst determined that no such unusual circumstances were present in the applicant’s record and her service did not warrant an honorable discharge.  Furthermore, the analyst noted the applicant's issue; however, the applicant was discharged under the provisions of Chapter 10, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this chapter is "In Lieu of Trial by Court-Martial", and the separation code is "KFS."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  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: 28 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 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
X.  Board Action Directed					         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 AR20080007100
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