Applicant Name:  

Application Receipt Date: 2008/07/23	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues:  See DD Form 293 and enclosed documents submitted by the Applicant’s Counsel/Representative for the Board’s 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: 	   Date: Not In File (NIF)
Discharge Received: 			   Date: 040520   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial By Court-Martial	   RE:     SPD: KFS   Unit/Location: A Co, 40th Signal Bn, Fort Huachuca, AZ 

Time Lost: None listed on DD Form 214, however the record indicates that the Applicant was confined by military authorities (040406-040408) and transferred to civilian confinement (040409).

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:  20
Current ENL Date: 020220    Current ENL Term: 5 Years  ?????
Current ENL Service: 	02 Yrs, 03Mos, 01Days ?????
Total Service:  		02 Yrs, 03Mos, 01Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 31R10/Multichannel Sys Opr   GT: 111   EDU: HS Grad   Overseas: Korea   Combat: None
Decorations/Awards: AAM, NDSM, GWOTSM, KDSM, ASR

V.  Post-Discharge Activity
City, State:  Sierra Vista, AZ
Post Service Accomplishments: Attended inpatient treatment, currently in recovery, under medication, Talbot Recovery Campus, relapse for cocaine use in August 2004.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record does not contain all of the documents that would indicate the nature of the charges in the Court Martial Charge Sheet.  However, the documents in the OMPF reflect that on 19 April 2004, 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 for what appears to be a violation of Article 112, UCMJ, for wrongful use and possession of a controlled substance.  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; however, his father provided an extensive statement along with other medical documents on the applicant’s behalf.  The unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge and indicated that the applicant had pled guilty to all charges and that he was cooperating with the CID.  On 17 May 2004, the separation authority approved the discharge with a characterization of service of under other than honorable conditions.  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 and the issue and the extensive medical documentation he and his counsel submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  The applicant’s record is void of 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.  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, for the good of the service in lieu of trial by court-martial.  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, 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.  It 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 determined that Army Regulation 635-200 provides that commanders will not take action to separate soldiers for personality or adjustment disorders solely to spare a soldier who may have committed serious acts of misconduct.  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: 8 December 2008         Location: Washington, D.C.

Did the Applicant Testify?  Yes 

Counsel: Mr. Russell D. Christopher
                 4226 Avenida Cochise, Suite 5
                 Sierra Vista, AZ 85635

Witnesses/Observers: Mr. and Mrs. Don and Lee Turner (Parents) 

Exhibits Submitted: 24 additional pages, three letters of support, highlights of additional material, letter to chain of command.   

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, the testimony of his counsel and his witnesses, and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable, 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: NA
Other: NA										
RE Code: 
Grade Restoration:  No  Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080011563
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