Applicant Name:  ?????

Application Receipt Date: 2008/12/17	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and attached document 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: NIF
Discharge Received: 			   Date: 050106   Chapter: 10      AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: B Co, 64th FSB, Fort Carson, CO 

Time Lost: AWOL x 3 for 55 days (040717-040729), returned to unit (040817-040819), returned to unit, and (041001-041109), apprehended.  However, these periods of AWOL are not annotated on the DD Form 214 block 29, dates of time lost during this period.

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

Courts-Martial (Charges/Dates/Punishment): The unit commander mentions in the notification memorandum that the applicant received a Summary Court-Martial dated 14 October 2003, however, this document is not part of the available record.

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 020221    Current ENL Term: 6 Years  block 12a on the DD Form 214, date entered active duty this period is incorrect, should read (020221), see enlistment contract.
Current ENL Service: 	02 Yrs, 10Mos, 02Days ?????
Total Service:  		02 Yrs, 10Mos, 02Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 63H10 Track Vehicle Repairer   GT: 107   EDU: HS Grad   Overseas: Southwest Asia   Combat: Kuwait/Iraq (030310-040215)
Decorations/Awards: NDSM, GWOTEM, GWOTSM, ASR, OSB-2

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 21 September 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, Paragraph 14-12b, AR 635-200, by reason of misconduct-pattern of misconduct for failure to report x 12 between (040303-040811), and receiving a Summary Court-Martial, with an under other than honorable conditions discharge.  He was advised of his rights.  The applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board, and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an  under other than honorable conditions discharge.  On 28 September 2008, the senior intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.  On 16 November 2004, the senior intermediate commander withdrew without prejudice the administrative separation initiated on 21 September 2004, against the applicant.  The evidence of record shows that on 10 December 2004, the applicant was charged with failure to report x 7 (040603), (040609), (040610),  (040612), (040708), (040712), (040712); AWOL x 3 (040717-040729), (040817-040819) and (041001-041119); and breaking restriction (040610).  On 17 December 2004, 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 applicant's chain of command recommended approval of a bad conduct discharge/Special Court-Martial.  On 22 December 2004, the separation authority approved the Chapter 10 request with an under other than honorable conditions discharge.  

       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 during the period of enlistment under review, the issue and document he submitted, 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 and considered the quality of his service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently meritorious to warrant an upgrade to the characterization of discharge.  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: 18 September 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: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: None
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20080019763
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