Applicant Name:  ?????

Application Receipt Date: 2008/08/14	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See enclosed DD Form 293 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: 060505
Discharge Received: 			   Date: 060523   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: Charlie Company, 35th Engineer Battalion, 1st Brigade, Fort Leonard Wood, MO 65473 

Time Lost: AWOL x 1 for 6 days (060326-060401). Mode of return is unknown.

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: 051229    Current ENL Term: 3 Years  16 Weeks, with a Moral waiver, which was approved on (051206). An exception was approved by HQ Waivers NCOIC for the applicant to enlist without RE Code waiver, because he never shipped to training and has no days of active duty. However, an order was published ordering the applicant to initial active duty for training (IADT) for 14 weeks or completion of basic and MOS training, which he never shipped as stated above.  
Current ENL Service: 	0 Yrs, 4 Mos, 19 Days ?????
Total Service:  		0 Yrs, 4 Mos, 19 Days ?????
Previous Discharges: 	ARNG 030828-030829/Unch
Highest Grade: E-1		Performance Ratings Available: Yes    No 
MOS: None   GT: 94   EDU: GED Certif   Overseas: None   Combat: None
Decorations/Awards: None

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: The applicant states that he is currently enrolled in college and going into the ROTC in St. Mary's University, so he can go into OCS.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 1 May 2006, the applicant was charged with leaving his appointed place of duty without authority x 3; (060402); (060402); (060402); disrespectful in language towards a noncommissioned officer (SSG); (060402); wrongfully used provoking words and gestures towards a SSG (060402); assaulted a PVT (060402) and unlawfully struck a PVT with his hands (060402).  On 4 May 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 did not submit a statement in his own behalf.  The unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge.  On 18 May 2006, 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, 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 analyst noted the applicant's issue outlining his successful accomplishments since separation from active duty.  The applicant is to be commended for his efforts.  However, these accomplishments do not provide the Board a basis upon which to grant relief. 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.  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: 20 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 characterization of service was too harsh and as a result, it is inequitable.  The Board does not condone the applicant's misconduct; however, it found that the circumstances surrounding the discharge (i.e., a minor and isolated incident and the applicant was in an entry level status at the time of discharge) mitigated the discrediting entry in the service record.  Accordingly, the Board voted to grant partial relief in the form of an upgrade by changing the characterization of service to uncharacterized.  However, the Board determined that the reason for discharge was both proper and equitable and voted not to change it.
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
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   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080012908
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