Applicant Name:  ?????

Application Receipt Date: 2009/06/01	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: 	   Date: 040920
Discharge Received: 			   Date: 090515   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: D Co, 1-6 IN Regt, APO AE 09034 

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:  18
Current ENL Date: 060420    Current ENL Term: 3 Years  16 Weeks
Current ENL Service: 	03 Yrs, 00Mos, 26Days ?????
Total Service:  		03 Yrs, 00Mos, 26Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 11B10 Infantryman   GT: 96   EDU: 11 Years   Overseas: Germany/Southwest Asia   Combat: Iraq (060923-070208) and (080407-081028)
Decorations/Awards: NDSM, ICM-W/CS, GWOTSM, ASR, OSR, CIB 

V.  Post-Discharge Activity
City, State:  Desoto, MO
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
             The evidence of record shows that on 17 April 2009, the applicant was charged with disobeying a lawful command from a CPT (081129), assaulting a SGT x 2 (081129), (081129), disobeying a lawful order from a SSG  (081129), resisting apprehension by an armed forces policeman (081129), without proper authority, willfully damaging by kicking a silver 2006 Ford Mondeo, military property of the United States, the amount of said damage of about $100 (081129), wrongfully use of d-methamphetamine (081127-081129), wrongfully communicating a threat to a female to injure her by cutting off her hand (081129), wrongfully communicating a threat to a SGT x 2, and a PFC, a threat to kill them (081129), wrongfully and willfully impersonating a NCO (081226), and drunk and disorderly, which conduct was of a nature to bring discredit upon the armed forces (081129).  On 17 April 2009, 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's legal counsel submitted a statement in his behalf.  The unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  The intermediate and senior intermediate commanders recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  On 9 May 2009, 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 an 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 applicant's failure to perform in accordance with Army standards was mitigated by service of sufficient length, to include his combat service (two tours in Iraq) and the medical circumstances surrounding the discharge to warrant an upgrade of the discharge under review.  Accordingly, the analyst recommends to the Board that relief be granted in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the analyst determined that the reason for discharge was fully supported by the record and therefore, remains both proper and equitable.  This action entails a restoration of grade to SPC/E-4.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 23 July 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 determined that the applicant's failure to perform in accordance with Army standards was mitigated by service of sufficient length, to include his combat service (two tours in Iraq) and the documented medical issues surrounding the discharge warrants an upgrade of the discharge under review.  Accordingly, the Board voted to grant 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 4    No change 1
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: SPC/E-4
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090010444
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