Applicant Name:  ?????

Application Receipt Date: 2008/10/20	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant stated, in effect on his DD Form 149, in lieu of a DD Form 293, that he believe he was set up due to wrongful charges; such as AWOL and drug possession. He never was AWOL or in possession of cannabis, nor was it found on him. He was told that if he didn't agree, then he would go to prison.

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: NIF
Discharge Received: 			   Date: 010209   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: Eagle Troop, 2nd Squadron, 2nd Armored Cavalry Regiment, Fort Polk, LA 71459 

Time Lost: Confined by the civilian authorities for 3 days (001118-001120), and AWOL x 1 for 29 days (001203-001231); apprehended. Total time lost 32 days. 

Article 15s (Charges/Dates/Punishment): The unit commanders indicated in their memorandum that the applicant received an Article 15; however, that particular document is not part of the available record.  Further, the DA Form 4856 (Developmental Counseling Form) dated (001121) shows that the applicant was counseled for breaking restriction, which was part of his punishment from the Article 15 imposed on (001119).    

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 990701    Current ENL Term: 4 Years  ?????
Current ENL Service: 	1 Yrs, 6 Mos, 7 Days ?????
Total Service:  		1 Yrs, 6 Mos, 7 Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 31U10 Signal Support Systems Spec   GT: 99   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: ASR

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 3 January 2001, the applicant was charged with failing to go to his appointed place of duty x 2 (001101); (001101); AWOL from (001203-010101), and on 29 January 2001, he was additionally charged with making an official statement to a SGT, which was false (001026), and wrongfully possessing an undetermined amount of marijuana (010126).  On 29 January 2001, 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.  However, the applicant indicated in his request for discharge under the provisions of Chapter 10; AR 635-200, in lieu of trial by court-martial that his characterization of service be that as general, under honorable conditions.  The applicant did not submit a statement in his own behalf.  On 1 February 2001, the FP Form 7-E, from the Staff Judge Advocate shows that the unit and intermediate commanders recommended approval of the Chapter 10 request.  On 1 February 2001, 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; however, the analyst found no evidence of arbitrary or capricious actions by the command.  Further, 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.  The applicant failed to respond appropriately to these efforts.  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: 4 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: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080016411
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