Applicant Name:  ?????

Application Receipt Date: 2009/03/17	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: 071204
Discharge Received: 			   Date: 071227   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: B Co, 3/67th AR BN, 4BCT, Ft Hood, TX 

Time Lost: AWOL x4, for a total of 11 days (070902-070903) 2 days, soldier returned to unit; (070906-070909) 4 days, Soldier returned to unit; (071012-071015) 4 days, apprehended; (071221) 1 day, arrested by civilian authorities for assault and confined.
Military confinement, (071016-071221) for 64 days

Article 15s (Charges/Dates/Punishment): 070816, wrongfully used cocaine (070601), reduction to E1, forfeiture of $650 per month for two months, suspended, to be automatically remitted if not vacated before 080212, extra duty and restriction for 45 days (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 040930    Current ENL Term: 3 Years  19 weeks
Current ENL Service: 	3 Yrs, 02Mos, 11Days ?????
Total Service:  		3 Yrs, 02Mos, 11Days ?????
Previous Discharges: 	None
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 11B10/Infantryman   GT: 88   EDU: GED   Overseas: SWA   Combat: Iraq (050426-060226)
Decorations/Awards: NDSM, GWOTSM, ICM, ASR, CIB

V.  Post-Discharge Activity
City, State:  Yazoo, MS
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 30 October 2007, the applicant was charged with AWOL x4 (071012-071015, 070902-070904, 070906-070910, 070910-070914); wrongfully possess some amount of methamphetamine (071015); stole property from three different Soldiers, two of value less than $500 each and one of value more than $500 (071015); stole property from an NCO of value more than $500 (071015); stole property from a civilian of value more than $500 (071015) and broke restriction (071014).  On 22 October 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 and intermediate commanders recommended approval of an under other than honorable conditions discharge.  On 20 December 2007, the separation authority approved the discharge with a characterization of service of under other than honorable conditions.  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 applicant's issue concerning agreeing to a Chapter 10 and being prosecuted and imprisoned on charges that he has already been incarcerated for, does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing DD Form 149 regarding this matter.  An application for that Board is enclosed.  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: 9 December 2009         Location: Washington, DC

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

Case Number AR20090006742
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