Applicant Name: ?????
Application Receipt Date: 2009/05/20 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: The applicant submitted no issues of equity or propriety to be considered by the Board.
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: 080514
Discharge Received: Date: 080602 Chapter: 10 AR: 635-200
Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: HHB, 428th FA Bde, Fort Sill, OK
Time Lost: Military confinement, 7 days (080402-080408); military confinement, 33 days, (080414-080516). Total time lost 40 days.
Article 15s (Charges/Dates/Punishment): 080207, failure to report on five occasions (between 071128-080123), disrespectful in language toward a NCO on three occasions (080117, 071116, 071128), reduction to E-1, forfeiture of $673 for two months, extra duty for 45 days (FG)
Courts-Martial (Charges/Dates/Punishment): None
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 20
Current ENL Date: 060112 Current ENL Term: 3 Years 25 weeks
Current ENL Service: 02 Yrs, 03Mos, 11Days ?????
Total Service: 02 Yrs, 03Mos, 11Days ?????
Previous Discharges: None
Highest Grade: E-3 Performance Ratings Available: Yes No
MOS: 63M10/BFV Sys Mech GT: 96 EDU: GED Overseas: Korea Combat: None
Decorations/Awards: NDSM, GWOTSM, KDSM, ASR, OSR
V. Post-Discharge Activity
City, State: Bakersfiled, CA
Post Service Accomplishments: None listed
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The evidence of record shows that on 2 April 2008, the applicant was charged with being AWOL(080401-080402), being disrespectful in deportment toward a NCO (080402), and assaulting a NCO by striking him in the face (080402). Additionally, on 25 April 2005, new charges were added for being disrespectful in language toward a NCO on two occasions (080414, 080418). 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 veterans 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 15 May 2008, the separation authority approved the discharge with a characterization of service of under other than honorable conditions.
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, 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 applicants military records 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.
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: 10 March 2010 Location: Washington, D.C.
Did the Applicant Testify? Yes No
Counsel: NA
Witnesses/Observers: NA
Exhibits Submitted: NA
VIII. Board Discussion, Determination, and Recommendation
After carefully examining the applicants record of service during the period of enlistment under review and considering the analysts 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 AR20090009940
______________________________________________________________________________
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