Applicant Name:  ?????

Application Receipt Date: 080707	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See attached DD Form 293 and supporting 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: 050131
Discharge Received: 			   Date: 050301   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: Division Troops Co, Special Troops Bn, Spt Bde, 4th Inf Div, Ft. Hood, TX 

Time Lost: AWOL 4 days (050119-050123), surrendered to military authorities; Pre-trial confinement 11 days (050124-050210)

Article 15s (Charges/Dates/Punishment): Commander's Memo, Subject: Pretrial Confinement, dated 25 January 2005, states the Applicant received a company grade Article 15 on 040513 for failure to report and another company grade Article 15 on 040720 for failure to report.  Nothing further in the file as to the punishment(s) imposed.

Courts-Martial (Charges/Dates/Punishment): 030814, Special Court-Martial, Guilty of intent to defraud and for the procurement of lawful currency, wrongfully and unlawfully make and utter to the Army Air Force Exchange Service (AAFES) certain checks (20 checks, totalling $5,700.00) between 020817 and 021004; Guilty of making a false statement to a Special Agent that his checkbook had been stolen on 020801 (030317); Sentenced to be reduced to the grade of E2, to be restricted to the limits of garrison, the religious retreat center, place of duty, barracks room, dining facility and chapel for 60 days, and to perform hard labor without confinement for 90 days. 

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 020103    Current ENL Term: 04 Years  ?????
Current ENL Service: 	03 Yrs, 01 Mos, 06 Days ?????
Total Service:  		03 Yrs, 01 Mos, 06 Days ?????
Previous Discharges: 	None
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 56M Chaplains Asst   GT: 90   EDU: HS Grad   Overseas: Republic of Korea   Combat: Iraq (040218-040401)
Decorations/Awards: GWOTEM, GWOTSM, NDSM, KDSM, ASR

V.  Post-Discharge Activity
City, State:  Abilene, TX
Post Service Accomplishments: None listed by the Applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
             The evidence of record shows that on 27 January 2005, the Applicant was charged with failure to go at the time prescribed to his appointed place of duty X 4 (040817, 040820, 040826, 040902); AWOL (050119-050124); failure to obey a lawful order from an NCO X 2 (040816, 040826); disrespectful in language toward an NCO (040902); disrespectful in deportment toward an NCO (041007); and, failure to obey a lawful order from an NCO to remove his tongue ring on diverse occasions between 050122 and 050123.  On 31 January 2005, 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 unit commander and intermediate commander recommended approval of an under other than honorable conditions discharge.  On 11 February 2005, 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 the Applicant’s military records, and the issue submitted with the application, 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 U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an Applicant submits a DD Form 293 requesting a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.   Additionally, 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.  Lastly, the evidence of record shows that the command attempted to assist the Applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment but the Applicant failed to respond appropriately to these efforts.  Therefore, 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: 1 May 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: No Change										
RE Code: 
Grade Restoration:   No   Yes   Grade: No Change
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080012453
______________________________________________________________________________


Page 1 of 3 pages