Applicant Name:  ?????

Application Receipt Date: 2008/05/27	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states "I WAS VERY FOOLISH NOT TO ACCEPT THE MILITARY AS A CAREER. THROUGH STRUGGLES AND HARDHIPS, I MANAGED TO SERVE IN THE MILITARY. I RELAIZE THAT THE DECISIONS YOU MAKE TODAY CAN AFFECT YOUR LIFE IN THE FUTURE. I HAVE MUCH REMORSE FOR MY BEHAVIOR,  AND I BELIEVE A SECOND CHANCE AT LIFE IN THE MILITARY WOULD BE BENEFICIAL TO MYSELF AND MY FAMILY. i AM STILL MOTIVATED TO BECOME A SOLDIER IN ALL ASPECTS OF SOCIETY NO MATTER WHAT THE OUTCOME WILL BE, AND A YOUNG INDIVIDUAL TO OVERCOME MY UPCOMING CHALLENGES. WITH ALL DO RESPECT, I WOULD APPRECIATE AND VALUE YOUR DECISION IN CHANGING THE LIFE OF ANOTHER YOUNG INDIVIDUAL. THANK YOU FOR YOUR TIME AND CONSIDERATION."

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:   NIF   Date: NIF
Discharge Received: 			   Date: 071004   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: HHD, 115th Combat Spt Hosp, Fort Polk, LA 

Time Lost: AWOL for 180 days (061231-070630), apprehended;  confinement by civil authorities for 55 days (070801-070926).  Total time lost 235 days. 

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:  19
Current ENL Date: 050525    Current ENL Term: 4 Years  20 Weeks
Current ENL Service: 	01Yrs, 07Mos, 14Days ?????
Total Service:  		01 Yrs, 07Mos, 14Days 
Previous Discharges: 	None
Highest Grade: E-2		Performance Ratings Available: Yes    No 
MOS: 42A10 Human Resources Spec   GT: 91   EDU: 12 Years   Overseas: Southwest Asia   Combat: Iraq (051104-061002)
Decorations/Awards: NDSM, ICM, GWOTSM, ASR, OSR

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



 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 10 August 2007, the applicant was charged  absented himself from his unit with the intent to remain away there from permanently in desertion until apprehended (070730); failure to report x 2 (061211), (061215); missed movement (061204); disrespectful in language towards a SFC (061204); disrespectful in language towards a SGT x 2  (061211), (061215); disrespectful in deportment towards a SGT (061210); disobeyed a lawful order from a SGT (070104); disobeyed a lawful order from a SFC (070104); and wrongful use of cocaine between (061129-061205).  On 24 August 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 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 submitted a statement in his own behalf.  In the Trial Counsel's memorandum dated 17 September 2007, the unit commander recommended that the Chapter 10 request be approved with an under other than honorable condition discharge.  Further, the intermediate and senior intermediate commanders recommended that the  Chapter 10 request be disapproved.  On 26 September 2007, the separation authority approved the 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 during the period of enlistment under review, the issues and document 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 determined that the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review.  Further, the analyst found  that the applicant met entrance qualification standards to include age.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Additionally, the record does not support the issue that the applicant suffers from Post Traumatic Stress Disorder and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition.  Finally,at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” cannot be waived and the applicant is no longer eligible for reenlistment. The Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  In view of the foregoing, the analyst determined that the reason for discharge, the characterization of service, and the reentry eligibility (RE) code  were both proper and equitable and recommends to the Board to deny relief. 

           The analyst noted that the DD Form 2624 (Speciment Custody Document-Drug Testing) found in the applicant's available records shows that the test was coded CO which indicates "Competence for Duty/Command Direct/Fitness for duty. The commander directs an individual test for fitness for duty.  The commander has a suspicion that a Soldier is using a controlled substance, but does not have probable cause.  The Limited Use Policy applies to this test basis, per AR 600-85.  However, the evidence of record shows that a Memorandum of Military Magistrate's Conclusion which established probable cause to believe that the applicant committed the offense of wrongful use of cocaine when he rendered a positive urine sample during a command directed urinalysis.  In view of the aforementioned, the analyst determined that the code on the DD Form 2624 was in all likelihood incorrect and should have been coded PO which indicates " Probable Cause: The commander directed the individual based on probable cause evidence.  The commander should verify that probable cause exists with the local Staff Judge Advocate (SJA) prior to ordering this test per AR 600-85.  As further evidence that the test was improperly coded, the applicant consulted with defense counsel in conjunction with his administrative discharge under the provisions of Chapter 10, AR 635-200 for various misconduct, and defense counsel did not raise the issue as to characterization.  The analyst concluded that the rights of the applicant were not prejudiced by the error on file in this case.  Furthermore, the evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made.
       

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 13 March 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 1    No change 4
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: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080008416
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