Applicant Name:  ?????

Application Receipt Date: 2009/05/26	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states:  "I feel that my discharge should be changed because when I got it I was going through a separation with my now ex-wife and issues regarding my little girl. The army is all I know. I miss it every day. My ex-wife and I got separated a little while after I got stationed at Fort Knox. We tried to work it out but couldn’t come to terms. She wanted to return to Colorado and she wanted to take my daughter with her. I did not agree to that. One day I went to work and she left all to gather. I came home to nothing and she took my daughter. It tore me up. I even spent two weeks in a nut house for depression. I took my issues to my 1SG and CO and I felt like they were on her side. I am the one who was true to the Army. And i really needed the help. I had no hope of getting her back the legal way. I couldn’t afford it. I took the wrong road and tried to get her back on my own. I went AWOL three times trying to get her back. I drove to Colorado but couldn’t find her. I love her very much and only wanted to be with her. I missed her birth by two weeks. I was in down town Baghdad and i know she was being born. I felt it. I used the phone when it was available and called home. Sure enough she was here.  My bond with her was strong I was in Iraq and still felt her. I only wanted her back. I never truly wanted to leave the army. I want to go back. Please I am begging you. Please change my discharge status to Honorable. I am also asking you to change my re-entry code. I want to return to what I know and love. I will do my country proud. I had 6 great years in service before my fiasco. I know what I did was wrong and I would never do it again. Please help me. I need this more then anything.  I feel so disgraced and worthless. And with an OTH discharge I am worthless. I did a tour in Bosnia and Iraq and Please let me go back.  HOOAH!!  I only have my DD Form 214 as a supporting document."  [The applicant did not provide any documentation to support his request.]

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: Not in File
Discharge Received: 			   Date: 070403   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: A Co, 3-81 AR Bn, Fort Knox, KY 

Time Lost: 50 days, AWOL (060914-061102), surrendered; AWOL again for 41 days (070209-070321), surrendered.  Total time lost is 91 days.

Article 15s (Charges/Dates/Punishment): 061103, wrongful use of marijuana (March through August 2006), AWOL (060914-061102), reduction to E-4, forfeiture of $1,136, extra duty for 30 days (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  26
Current ENL Date: 051108    Current ENL Term: 5 Years  ?????
Current ENL Service: 	01 Yrs, 01Mos, 25Days ?????
Total Service:  		07 Yrs, 09Mos, 11Days Includes inactive service
Previous Discharges: 	ARNG 980915-981118/UNC
                                       RA 000103-020317/HD
                                       RA 020318-051107/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 19D10/Cav Scout   GT: 90   EDU: HS Grad   Overseas: Germany, Bosnia, SWA   Combat: Iraq (030406-040405)
Decorations/Awards: AAM, NDSM, AGCM-2, NATO Medal, ASR, OSR

V.  Post-Discharge Activity
City, State:  Louisville, KY
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 22 March 2007, the applicant was charged with desertion, in that on 9 February 2007, without authority and with the intent to remain away permanently, absented himself from his unit and did remain so absent in desertion until 21 March 2007.  
       
       On 23 March 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 and intermediate commanders recommended approval of the Chapter 10 request with a characterization of service that would prevent the applicant from being able to rejoin the Armed Forces again.  .  
       
       On 29 March 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 contains a CID Report dated 8 March 2007, which indicates the applicant was the subject of an investigation for indecent acts and forcible sodomy upon a child.  It was closed due to insufficient evidence.

       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, under honorable conditions 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 and documents 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. 
       
       The analyst noted the applicant’s issue and determined that he was discharged under the provisions of Chapter 10, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial", and the separation code is "KFS."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  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.
       
       Furthermore, the applicant contends that he had family problems; however, as a non-commissioned officer he was aware that that he had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review.  
       
       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: 20 April 2010         Location: Atlanta, GA

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: None

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

Case Number AR20090008983
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