Applicant Name:  ?????

Application Receipt Date: 2009/02/06	Prior Review:     Prior Review Date: Records Review (070912)

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and attached documents 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: 050513   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: HHD, NCOA, Fort Benning, GA 

Time Lost: AWOL x 1 for 687 days (010924-030815), apprehended.  The applicant's DD Form 214 under review, in block 29 "Dates of Time Lost During this Period," makes reference to the applicant having lost time (011026-030815), however, documents found in the available records show that the time lost should read (010924-030815).

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:  23
Current ENL Date: 041029    Current ENL Term: 06 Years  ?????
Current ENL Service: 	00 Yrs, 06Mos, 15Days ?????
Total Service:  		03 Yrs, 02Mos, 06Days ?????
Previous Discharges: 	RA-000418-041028/HD
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 92Y1P/Unit Supply Specialist   GT: 87   EDU: HS Letter   Overseas: None   Combat: None
Decorations/Awards: ASR, GWOTSM

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The specific fact and circumstances leading to the applicant's discharge from the Army are not contained in the availables records.  However, information taken from the applicant's prior Army Discharge Review Board-Case Report and Directive shows that on 10 December 2004, the applicant was charged with the attempt to indecently assault a woman who was not his wife (040921); AWOL (010924-030815), and rape (040921).  On 3 May 2005, 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 record was void of the unit commander's recommendation for approval of an under other than honorable conditions discharge and the analyst presumed government regularity in the discharge process.  On 5 May 2005, 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 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 found no evidence of arbitrary or capricious actions by the command.  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: 23 April 2010         Location: Atlanta, GA

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

Exhibits Submitted: Copy of case transcripts totaling 79 pages.

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 AR20090006123
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