Applicant Name:  ?????

Application Receipt Date: 2009/01/05	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: NIF
Discharge Received: 			   Date: 061226   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: Rear Detachment, 15th Personnel Services Battalion, 1st Cavalry Division, Fort Hood, TX 76544 

Time Lost: Pre-trial confinement for 10 days (061104-061113)

Article 15s (Charges/Dates/Punishment): 060912, Disrespectful toward a CPT (060829); disobeyed a lawful command from a CPT x 2, (060829); (060829); disobeyed a lawful order from a SFC x 3, (060829); (060829); (060829); reduction to E-1; forfeiture of $637.00 pay per month for 2 months, suspended to be automatically remitted it not vacated before (070312); extra duty for 45 days (CG) 

The suspension of the punishment reduction to Private (E-1); forfeiture of $637.00 pay per month for two (2) months imposed on (060912) was vacated, effective (061108) based on the applicant's offense(s) of wrongfully failing to register and properly store his personal firearm (061103); and wrongfully possessing an undetermined amount of marijuana (061103).  

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 060420    Current ENL Term: 3 Years  ?????
Current ENL Service: 	0 Yrs, 7 Mos, 27 Days ?????
Total Service:  		3 Yrs, 5 Mos, 27 Days ?????
Previous Discharges: 	ARNG 030620-030702/NA
                                       ADT    030703-031115/Unchar
                                       ARNG 031116-040114/NA
                                       OADT 040115-050503/HD
                                       ARNG 050504-060419/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 42A10 Human Resources Spec   GT: 98   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq (040228-050128); (prior service)
Decorations/Awards: NDSM, GWTEM, GWTSM, ASR, AFSMw/ "M" Device

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 22 November 2006, the applicant was charged with failing to go to his appointed place of duty x 2, (060929); (061010); disobeying a lawful order from a CW2 (061001); disrespectful in language toward a SFC (061001); disobeyed a lawful order from a SGT (061006); dereliction of duties x 2, (dates-NIF), and failing to obey a regulation (date-NIF); (the DD Form 458 continuation sheet-is not part of the available record).  On 5 December 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 recommendation for separation are not part of the available record and the analyst presumed Government regularity in the discharge process.  On 8 December 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 and 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.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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 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: 22 April 2009         Location: Atlanta, GA

Did the Applicant Testify?  Yes     No  

Counsel: None

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 characterization of service was too harsh and as a result, it is inequitable.  The Board found that the length of the applicant's service, to include his combat service mitigated the discrediting entries in the 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.  However, the Board determined that the reason for discharge and the reentry eligibility (RE) code 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 AR20090002310
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