Applicant Name: ?????
Application Receipt Date: 2009/02/01 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: See 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: 040106 Chapter: 10 AR: 635-200
Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: 741 MI BN, Ft Meade, MD
Time Lost: None
Article 15s (Charges/Dates/Punishment): NIF, on the DA Form 2-1 there are indications of reduction in grade.
Courts-Martial (Charges/Dates/Punishment): None
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 20
Current ENL Date: 000328 Current ENL Term: 4 Years ?????
Current ENL Service: 3 Yrs, 09Mos, 09Days ?????
Total Service: 3 Yrs, 09Mos, 09Days ?????
Previous Discharges: None
Highest Grade: E4 Performance Ratings Available: Yes No
MOS: 98K10/Non-Morse Intcp/Analyst GT: 102 EDU: GED Overseas: Germany Combat: None
Decorations/Awards: AGCM, NDSM, ASR, OSR
V. Post-Discharge Activity
City, State: Odenton, MD
Post Service Accomplishments: None listed
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The applicants record is void of the specific facts and circumstances concerning the events that led to the discharge from the Army. However, the record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicants signature. The DD Form 214 indicates that the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service in lieu trial by court-martial with a characterization of service of under other than honorable conditions. Furthermore, the DD Form 214 shows a Separation Code of KFS (i.e., for the good of the service-in lieu of court-martial) with a reentry eligibility (RE) code of "4."
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 individuals 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 applicants 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; however, 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. Therefore, 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: 14 September 2009 Location: Washington, DC
Did the Applicant Testify? Yes No
Counsel: None
Witnesses/Observers: Mr. Hector H. Colon, father and Mrs. Janitza Colon, wife.
Exhibits Submitted: None
VIII. Board Discussion, Determination, and Recommendation
After carefully examining the applicants record of service during the period of enlistment under review, hearing his testimony and considering the analysts recommendation and rationale, the Board determined that the discharge was both proper and equitable, voted to deny relief. .
IX. Board Decision
XI. Certification Signature
Board Vote: Approval Authority:
Character - Change 1 No change 4
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: NA
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE
Case Number AR20090006244
______________________________________________________________________________
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