Applicant Name:  ?????

Application Receipt Date: 0800805	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See enclosed 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: 080421
Discharge Received: 			   Date: 080421   Chapter: 3    AR: 635-200
Reason: Court-Martial, Other	   RE:     SPD: JJD   Unit/Location: Rear Det, Bde Troops Bn, 3rd Bde (SBCT), 2nd Inf Div, Ft Lewis, WA 

Time Lost: AWOL x 2  for a total of 784 days (030709-031018/apprehended & 031101-060921/mode of return NIF).  Confinement for 299 days (070424-080323). 

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

Courts-Martial (Charges/Dates/Punishment): 070724.  General Court-Martial, convicted of being AWOL two times (030709-031019/apprehended and 031101-060921/mode of return not in the record), sentenced to forfeiture of all pay and allowances, confinement for 12 months and a Bad Conduct Discharge.  On 080321, the convening authority modified the sentence to 299 days confinement, waived the forfeitures of pay and allowances with the monies to be paid for the benefit of the Applicant's children and, granted clemency to the Applicant thereby ordering that the Applicant be discharged with a characterization of Under Other Than Honorable conditions, under the provisions of Chapter 10, AR 635-200. 

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 010206    Current ENL Term: 04 Years  ?????
Current ENL Service: 	03 Yrs, 01 Mos, 15 Days 29 days excess leave (080324-080421)
Total Service:  		03 Yrs, 01 Mos, 15 Days ?????
Previous Discharges: 	None
Highest Grade: E3		Performance Ratings Available: Yes    No 
MOS: 21B  Combat Engineer   GT: NIF   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: AAM x2 (not indicated on the Applicant's DD 214), NDSM, GWOTSM, ASR

V.  Post-Discharge Activity
City, State:  Lakeview, AR
Post Service Accomplishments: None submitted by the Applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 24 July 2007, the Applicant was found guilty by general court-martial of being AWOL two times (030709-031019/apprehended and 031101-060921/mode of return NIF).  The Applicant was sentenced to forfeiture of all pay and allowances, confinement for 12 months and a Bad Conduct Discharge.  On 21 March 2008, the Commanding General (CG), Department of the Army, Headquarters, I Corps and Fort Lewis, Fort Lewis, Washington, approved only so much of the sentence as provided for confinement for 299 days, with credit being given for a total of 67 days against the sentence to confinenent.  The forfeitures of pay and allowances were waived with the understanding that the monies be paid for the benefit of the Applicant's children.  Additionally, clemency was granted thereby approving the Applicant's post-trial Chapter 10 request.  As a result, on 21 March 2008, the CG, DA, HQ, I Corps and Fort Lewis, Fort Lewis, Washington approved the Applicant's request for discharge pursuant to the provisions of Chapter 10, Army Regulation 635-200, and ordered the issuance of a discharge with 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, and the issue and document submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  The evidence of record indicates that 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 (post trial).  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.  Furthermore, the analyst found no evidence of arbitrary or capricious actions by the command.  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.  Further, eligibility for veteran's benefits to include educational benefits under the Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.  Therefore, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief.  
       
       Notwithstanding the propriety of the Applicant's discharge, the record shows that someone in the discharge process erroneously entered on the Applicant's DD Form 214, block 25 as “AR 635-200, Chapter 3”; block 26 separation code  as "JJD"; and, block 28, narrative reason for separation as “Court-Martial. Other.”  In view of the foregoing, the analyst recommends to the Board that an administrative change be made to block 25 separation authority to indicate AR 635-200, Chapter 10; block 26, separation code as "KFS"; and, block 28, reason for separation as “In Lieu of Trial By Court-Martial,” which was approved by the separation authority post trial.   Except for the foregoing modifications, as stated above, the analyst determined that the discharge was both proper and equitable.
       
       
       
       
       
       
       
       
       
       
       

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 13 May 2009         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: NA

VIII.  Board Discussion, Determination, and Recommendation
Notwithstanding the propriety of the Applicant's discharge, the Board found that the Applicant's DD Form 214 contained some erroneous entries and directed the following changes:  block 25 to read, "AR 635-200, Chapter 10"; block 26 to read, "KFS"; and, block 28 to read, "In Lieu of Trial By Court-Martial".  Except for the foregoing modifications, as stated above, the Board determined that the Applicant's characterization of service was both proper and equitable and voted not to change it. 
        
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: In Lieu of Trial By Court-Martial
Other: Change block 25 separation authority to indicate AR 635-200, Chapter 10; Change block 26, separation code, to KFS.										
RE Code: 
Grade Restoration:   No   Yes   Grade: No Change
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080012660
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