Applicant Name:  ?????

Application Receipt Date: 2008/06/26	Prior Review:     Prior Review Date: NA     

I.  Applicant 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?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 061004
Discharge Received: 			   Date: 061020   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: 104th Trans Co, Fort Benning, GA 

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:  21
Current ENL Date: 051123    Current ENL Term: 4 Years  ?????
Current ENL Service: 	00 Yrs, 10Mos, 28Days ?????
Total Service:  		03 Yrs, 07Mos, 01Days ?????
Previous Discharges: 	RA-030620-051122/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 88M10 Motor Transport Operator   GT: 91   EDU: GED Cert   Overseas: Southwest Asia   Combat: Kuwait/Iraq (050125-060127)
Decorations/Awards: ARCOM, AGCM, GWOTSM, 

V.  Post-Discharge Activity
City, State:  Orrville, AL
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 August 2006, the applicant was charged with wrongful use of D-Methamphetamine between (060701-060710), wrongful use of 3, 4-methylene-dioxymethamphetamine (MDMA), commonly known as ecstasy x 2 between (060701-060710), and (060701-060710) and wrongful use of marijuana between (060430-060530).  On 25 September 2006, 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.  The unit commander recommendrd approval of the Chapter 10 request with an under other than honorable conditions discharge.  The intermediate commander recommendrd approval of the Chapter 10 request with an under other than honorable conditions discharge.  On 5 October 2006, the separation authority approved the Chapter 10 request with under other than honorable conditions discharge.  The applicant was to be reduced to the lowest enlisted rank.
        The analyst noted that on the applicant's DD Form 214 block 24, characterization of service reads, "general, under honorable conditions."  However, the separation authority approved the applicant's discharge 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. 

       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 documents 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 that he was not adequately represented by JAG, however, the analyst was satisfied that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, 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. 
       
       Notwithstanding the propriety of the applicant's discharge, the analyst found that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 24, characterization of service as general, under honorable conditions.  However, the separation authority approved the applicant's discharge 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. It is the Board's policy not to change the characterization of service to a lesser degree than received even though substantiated in the applicant's record.  The Board will not downgrade a characterization of service.  In view of the foregoing, the analyst determined that the reason for discharge and the characterization of service, to include his reentry eligibility (RE) code was both proper and equitable and recommends to the Board to deny relief.  

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 8 April 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: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080010409
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