Applicant Name:  ?????

Application Receipt Date: 2009/03/10	Prior Review:     Prior Review Date: NA     

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: 	NIF   Date: NIF
Discharge Received: 			   Date: 941109   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: C Co, 299th EN Bn, Fort Carson, CO 

Time Lost: None

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:  22
Current ENL Date: 940512    Current ENL Term: 3 Years  ?????
Current ENL Service: 	00 Yrs, 05Mos, 28Days ?????
Total Service:  		04 Yrs, 02Mos, 26Days ?????
Previous Discharges: 	RA-900814-940511/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 12B10 Combat Engineer   GT: 96   EDU: HS Grad   Overseas: Southwest Asia   Combat: Saudi Arabia (910107-910406)
Decorations/Awards: AAM, AGCM, NDSM, SWASM-W/2 BSS, ASR, KLM-SA, KLM-KU  

V.  Post-Discharge Activity
City, State:  Cantonment, FL
Post Service Accomplishments: None Listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The applicant’s record is void of the DD Form 458 (Charge Sheet) and the analyst presumed Government regularity in the discharge process.  However, on 28 October 1994, 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 for the following offenses, contempt and disrespect toward a NCO, and communicating a threat x 2.  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 submitted a statement in his own behalf.  The unit and intermediate commanders recommended disapproval of the Chapter 10 request.  The senior intermediate commander recommended disapproval of the Chapter 10 request with an under other than honorable conditions discharge.  On 3 November 1994, 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.  
       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 issues and documents he submitted, the analyst found several mitigating factors that would merit a partial upgrade of the applicant's characterization of service to general, under honorable conditions.  There was a full consideration of all faithful and honorable service as well as the infractions of discipline, the extent thereof, and the seriousness of the offenses.  The evidence in this case supports a conclusion that the characterization of service is too harsh, and as a result it is inequitable.  While the applicant’s misconduct is not condoned, the analyst found that the overall length and quality of the applicant’s service, to include his combat service mitigated the discrediting entries in the service record.  Accordingly, the analyst recommends to the Board that partial relief be granted in the form of an upgrade of the characterization of service to general, under honorable conditions.  This action entails a restoration of grade to SPC/E4.
       
       Furthermore, the analyst noted the applicant’s issues requesting a fully honorable characterization of service; however, by his misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  Further, eligibility for veteran's benefits to include educational benefits under the Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.  However, the analyst determined that the reason for discharge was fully supported by the record and therefore, remains both proper and equitable.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 11 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 characterization of service is too harsh, and as a result, it is inequitable.  The Board found that the overall length and quality of the applicant's service; to include his combat service, mitigated the discrediting entries in his 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 was both proper and equitable and voted not to change it.  This action entails a restoration of grade to SPC/E-4.








        
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: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: E-4
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090007259
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