Applicant Name:  ?????

Application Receipt Date: 2009/01/26	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 149 which the applicant submitted in lieu of DD Form 293 and attached documents.

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: 041021   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial By Court-Martial	   RE:     SPD: KFS   Unit/Location: HHC, 2/34th Inf, 1st Bde, Fort Riley, KS 

Time Lost: AWOL X 4 for a total of 562 days (020402-020429) mode of return unknown, (020515-020519) mode of return unknown, (020603-020609) mode of return unknown, and (021017-040323), apprehended.  Documents found in the available records also make reference to the applicant having a period of AWOL of (020821-020929) which was omitted from the applicant's DD Form 214.

Article 15s (Charges/Dates/Punishment): 010823, Failure to go at the time prescribed to his appointed place of duty X 2 on or about (010727 and 010731), reduction to the grade of E1, forfeiture of $243.00 pay per month for one month, 14 days extra duty, and 14 days restriction, (CG).

020523, Record of Proceedings Under Article 15 action was initied against the applicant for AWOL (020402-020430), however, the action was not completed.

020630, Summarized Record of Proceedings Under Article 15 was initiated against the applicant for failure to go to his appointed place of duty X 2 (020611 and 020617), however, the action was not completed.


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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  22
Current ENL Date: 010122    Current ENL Term: 03 Years  With a moral waiver.
Current ENL Service: 	01 Yrs, 02Mos, 06Days Does not include the period of AWOL (020821-020929).
Total Service:  		01 Yrs, 02Mos, 06Days ?????
Previous Discharges: 	None
Highest Grade: E2		Performance Ratings Available: Yes    No 
MOS: 11C10/Indirect Fire Infantryman   GT: 101   EDU: GED   Overseas: None   Combat: None
Decorations/Awards: AAM, NDSM, GWOTSM, ASR, 

V.  Post-Discharge Activity
City, State:  Port Saint Lucie, FL
Post Service Accomplishments: None Listed


VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 18 July 2002, the applicant was charged with AWOL X 3 (020402 to 020430, 020515 to 020520, and 020603 to 020610) and failure to go at the time prescribed to his appointed place of duty (020611).  The applicant's request for discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial and the applicant's chain of commands recommendations are not contained in the available record and the analyst presumed government regularity in the discharge process.  On 23 August 2002, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial with an under other than honorable conditions discharge.  The applicant was to be reduced to the lowest enlisted rank.
       
       The applicant's record contains two Military Police Reports dated 26 February 2002 and 29 March 2002.

       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 documents, and the issues 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 issues, however, the analyst 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.  Further, the analyst found no evidence of arbitrary or capricious actions by the command.  Also, 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.  Additionally, 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, the characterization of service, and the reentry eligibility (RE) code 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: Yes

Witnesses/Observers: None 

Exhibits Submitted: None


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 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 AR20090002091
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