Applicant Name:  

Application Receipt Date: 2009/03/02	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 149 submitted in lieu of DD Form 293 and supporting documentation 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: 070417
Discharge Received: 			   Date: 070516   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: E Btry, 1st Bn, 22d FA, Ft. Sill, OK 

Time Lost: AWOL 159 days (060928-070307); apprehended by civilian authorities in Orlando, FL.

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:  27
Current ENL Date: 060809    Current ENL Term: 03 Years  24 Weeks
Current ENL Service: 	00 Yrs, 03 Mos, 28 Days Excess leave 44 days (070403-070516)
Total Service:  		00 Yrs, 11 Mos, 08 Days ?????
Previous Discharges: 	USAR  000414-Date NIF (Enlisted for term of 8 yrs)/NIF
Highest Grade: E3		Performance Ratings Available: Yes    No 
MOS: None   GT: 102   EDU: College   Overseas: None   Combat: None
Decorations/Awards: None

V.  Post-Discharge Activity
City, State:  Orlando, FL
Post Service Accomplishments: None submitted by the Applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 2 April 2007, the Applicant was charged with being AWOL (060928-070308).  On 2 April 2007, 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 the Chapter 10 request with an under other than honorable conditions discharge.  On 1 May 2007, the separation authority approved the Chapter 10 request with an under other than honorable conditions discharge.  The Applicant was to be reduced to the lowest enlisted rank.
       The record of evidence contains documentation that the Applicant was injured in the line of duty on 24 August 2006, while attending basic training at Ft. Sill, OK .  The Applicant submitted an unsigned/undated DA Form 31, Request and Authority For Leave, indicating he was on convalescent leave from 30 August 2006 until 19 September 2006, with a leave address in Orlando, FL.  Additionally, the Applicant provided documentation indicating he was extended on convalescent leave from 28 September 2006 until 15 October 2006, by an "orthopaedic" physician assistant at Patrick Air Force Base, FL.

       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 indicates that 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 and found no evidence of arbitrary or capricious actions by the command.  Additionally, the record does not support the Applicant’s contention that the discharge was the result of any medical condition.  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.  Therefore, the analyst determined 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: 14 September 2009         Location: Washington, D.C.

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: No Change										
RE Code: 
Grade Restoration:   No   Yes   Grade: No Change
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090004058
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