Applicant Name:  ?????

Application Receipt Date: 2008/09/22	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The Applicant states in effect:  "I received a Chapter 10, Other Than Honorable discharge for the allegation of theft.  The following factors should be considered in upgrading my discharge:  1)  My duty performance, which included stellar evaluations of my military activities and outstanding evaluations of my two overseas combat deployments. (See attached documentation);  2)  I was not aware of the implications of the Chapter 10 discharge and was not fully advised by legal counsel as to my rights in this process.  The circumstances surrounding the allegations of my misconduct involved numerous MP's located at Abu Ghraib.  I was informed that due to my limited involvement in the alleged theft, I was not to be punished in a manner that would limit my future military career.  3) An Army Reserve Unit (387th  AG) in Bethany, Missouri is deploying in May of 2009 and the Master Sergeant in charge of the unit is extremely interested in adding me to his team.  He has stated that if my discharge can be upgraded, he would add me immediately to the deployment."  He provides 9 letters of support 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: 060831
Discharge Received: 			   Date: 061002   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial By Court-Martial	   RE:     SPD: KFS   Unit/Location: HHC, 43d MP Bde, Camp Victory, Iraq 

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: OAD/050808    Current ENL Term: 276 days Years  ?????
Current ENL Service: 	01 Yrs, 01Mos, 25Days ?????
Total Service:  		05 Yrs, 07Mos, 20Days ?????
Previous Discharges: 	ARNG 010213-061002/UOTH (Concurrent Service)
                                       OAD 030207-040512/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 74D20/Chemical Ops NCO   GT: 103   EDU: 2 YR COLL   Overseas: Kuwait, Iraq   Combat: Iraq/Kuwait (030401-040405), Iraq (051008-060923)
Decorations/Awards: ARCOM, NDSM, GWOTEM, GWOTSM, ICM, ASR, OSR-2, AFRM-2

V.  Post-Discharge Activity
City, State:  Kansas City, MO
Post Service Accomplishments: None listed



VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 31 August 2006, the applicant was charged with stealing more than $500, while in Iraq, the property collected, secured and in the custody of the U.S. Government and with receiving stolen currency of a value of more than $500 which he knew was stolen (060605-060701).  On 31 August 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 recommended approval of an under other than honorable conditions discharge.  On 18 September 2006, 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 documents 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, 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.  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: 23 February 2009         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: American Legion 

Witnesses/Observers: Applicant's spouse 

Exhibits Submitted: Letter of Reference, 387th HRC Co, Bethany, MO
                                   Letter from American Legion 

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, and considering the analyst’s recommendation and rationale, the Board determined that the discharge is now inequitable.  The Board found that the overall length and quality of the applicant's service to include his combat service, mitigated the discrediting entries in his service record.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions and a change to the narrative reason for separation to Secretarial Authority.  Additionally, the Board voted to change the reentry eligibility (RE) code to "3."  
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 5    No change 0
Reason -     Change 3    No change 2
(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: Secretarial Authority  under Provision of Chapter 5, AR 635-200, with a corresponding SPD Code of "JFF" (Involuntary Discharge).
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080015649
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