Applicant Name: 

Application Receipt Date: 080521	

Prior Review    Prior Review Date: 980318/Record 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: 931208   
Chapter: 10    AR: 635-100
Reason: In Lieu of Trial by Court-Martial
RE:     SPD: KFS
Unit/Location: B Co, 3rd Bn, 41st Inf Bn, Fort Hood, TX 

Time Lost: None

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

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Year/Month:  1956/12  
HOR City, State: Killeen, TX
Current ENL Date: 880912    Current ENL Term: 06 Years  ?????
Current ENL Service: 05 Yrs, 02Mos, 27Days ?????
Total Service:  18 Yrs, 08Mos, 02Days ?????
Previous Discharges: RA-750407-790406/HD
                                      USAR-790407-790726/NA
                                      RA-790727-830211/HD
                                      RA-830212-880911/HD
Highest Grade: E7
Performance Ratings Available: Yes    No 
MOS: 11M1X/Fighting Vehicle Infantryman   GT: 112   EDU: HS Grad   Overseas: Korea (Prior period of service), X 2 Germany   Combat: None
Decorations/Awards: ARCOM-1, AGCM-5, NDSM, NCOPDR-3, ASR, OSR-3, EIB

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

VI.  Facts, Circumstances, and Legal Basis for Separation

      a.  Facts and Circumstances:
      The facts and circumstances leading to the applicant’s discharge from the Army are not contained in the available records.  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, in lieu of trial by court-martial, with a characterization of service of under other than honorable conditions.  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 "3."  Evidence of record futher shows that on 8 December 1993, Orders 231-049, DA, HQ, 2nd Armored Division, Fort Hood, Tx, discharged the applicant from the Regular Army effective date 8 December 1993.  

      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 available records for 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 applicant’s record is void of the facts and circumstances concerning the events that led to his discharge from the Army.  The analyst noted that the applicant’s record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge and the analyst presumed Government Regularity in the discharge process.  The evidence of record shows the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with an under other than honorable conditions discharge.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ), with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request 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.  In the absence of information to the contrary, it is presumed that all 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 would have been aware of that prior to requesting discharge.  Additonally, the analyst noted the applicant's issue, however, the analyst found no evidence of arbitrary or capricious actions by the command.  In view of the foregoing, the analyst determined that the reason for discharge and the characterization of service remains 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, DC

Did the Applicant Testify?  Yes  X    No 

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: The applicant submitted 13 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: 	       	Proper	 	Improper	
						Equitable	 	Inequitable	

DRB voting record:  		      Change 4    No change 1   - 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 characterization of service was too harsh and as a result, it is now inequitable.  The Board does not condone the applicant’s misconduct; however, determined that the overall length and quality of the applicant’s service, 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 SFC/E7.
















								        
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: SFC/E7

XI.  Certification Signature and Date
Approval Authority: 

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

Official: 


CHRISTINE U. MARTINSON			DATE: 29 September 2008
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080008137
______________________________________________________________________


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