Applicant Name: 

Application Receipt Date: 2008/05/05	

Prior Review    Prior Review Date: 7 May 2003

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: 011126
Discharge Received:     Date: 011219   
Chapter:  10      AR: 635-200
Reason: In lieu of trial by court martial
RE:     SPD: KFS
Unit/Location: 568th En Co, FT Riley, KS 

Time Lost: AWOL for 8 days (010830-010906).  Mode of return is unknown.

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

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Year/Month:  1978/05  
HOR City, State: Tamaqua, PA
Current ENL Date: 001116    Current ENL Term:   4   Years  ?????
Current ENL Service:  01  Yrs,  00 Mos,  26 Days ?????
Total Service:   01  Yrs,  00 Mos,  26 Days ?????
Previous Discharges: None	
Highest Grade: E2   
Performance Ratings Available: Yes    No 
MOS: 62E10 Heavy Construction Equip Operator   GT: 108   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: ASR

V.  Post-Discharge Activity
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      The applicant’s available record does not contain all the facts and circumstances surrounding the applicant’s discharge.  The evidence of record shows that on 16 November 2001, the applicant was charged with wrongful use of cocaine x2 (010901-010911 and 010922-011001), without authority absented himself from his unit (010830-010906), and failed to go to his appointed place of duty x7 (010629, 010803, 010816, 010919, 011102, 011105, 011106).  On 26 November 2001, 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 applicant's chain of command recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  The available record does not contain the separation authorities approval of the Chapter 10, however, the record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  His DD Form 214 indicates that he was discharged under the provisions of Chapter 10, AR 635-200, by reason of in lieu of trial by court martial with an under other than honorable conditions discharge.  Furthermore, the DD Form 214 shows a Separation Code of KFS (i.e., in lieu of trial by court martial) with a reentry eligibility (RE) code of 4.   The applicant was to be reduced to the lowest enlisted rank.
      The record includes a Criminal Investigation Division Report dated 2 October 2001
      
      
      
      
      
      
      

      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 indicates that 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 available record includes two (2) DD Form 2624 (Specimen Custody Document-Drug Test)(010912 and 011001) that indicate the applicant was tested with positive result for use of cocaine.  The initial test basis is coded as a Command Directed urinalysis (CO) which is not permitted under limited use rules.  The available record also includes a counseling statement dated 4 September 2001 indicating the applicant failed to report for a unit wide urinalysis test after he was called and directed by a noncommissioned officer.  The applicant’s unauthorized absence, this urinalysis test and resulting positive determination, were included in the applicant’s court martial charges and subsequent request for a Chapter 10 in lieu of the court martial.  The preponderance of the evidence supports a miscoding of the test basis.  The applicant’s AWOL, counseling statement (dated 4 September 2001) regarding notification of a unit urinalysis inspection which he did not report for, the court martial charges, and the defense counsel's acknowledgement in support of the Chapter 10 discharge all indicate this was a properly executed test under the provisions of a unit inspection.  The analyst noted the applicant's issue and 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.  At the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” can not be waived and the applicant is no longer eligible for reenlistment.  Furthermore, the analyst 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.  Therefore, the analyst determined 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: 22 September 2008              
Location: Washington D.C.

Did the Applicant Testify?  Yes     No  

Counsel:  NA	

Witnesses/Observers:  NA	 

Exhibits Submitted:  Applicant submitted one (1) additional document for consideration by the board.	



VIII.  Board Decision
The discharge was:			Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The characterization of service was:   Proper	 	Improper	
				                 	Equitable	 	Inequitable	

The narrative reasons were: 	       	Proper	 	Improper	
						Equitable	 	Inequitable	

DRB voting record:  		      Change   0      No change   5      - 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, hearing his testimony and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable, 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: 


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

Official: 


CHRISTINE U. MARTINSON			DATE: 24 September 2008
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080007222
______________________________________________________________________


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