Applicant Name:  ?????

Application Receipt Date: 2009/06/22	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: NIF
Discharge Received: 			   Date: 030307   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: C Company, 3rd Battalion, 67th Armor Regiment, 2nd Brigade, 4th Infantry Division (Mechanized), Fort Hood TX.  

Time Lost: None

Article 15s (Charges/Dates/Punishment): 021002, Willfully disobeyed a lawful order from SSG, a noncommissioned officer on or about (020922); disrespectful in language toward SGT, a noncommissioned officer on or about 020909); disobeyed a lawful order from SFC, a noncommissioned officer on or about 020909); disobeyed a lawful order from SSG, a noncommissioned officer on or about 020906); failed to go to his appointed place of duty on or about 020902; disrespectful in language toward SGT, a noncommissioned officer on or about 020828; reduction to Private (E-2); forfeiture of $289.00 pay per month for one month; extra duty and restriction for 14 days (CG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 010716    Current ENL Term: 3 Years  ?????
Current ENL Service: 	1 Yrs, 7 Mos, 22 Days ?????
Total Service:  		1 Yrs, 7 Mos, 22 Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 19K10 K4 M1 Armor Crewman   GT: 108   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: NDSM, ASR

V.  Post-Discharge Activity
City, State:  ?????
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 10 January 2003, the applicant was charged with disobeying a lawful command from 2LT, a superior commissioned officer on or about 021002; disobeying a lawful order from SSG, a noncommissioned officer on or about 021002; disobeying a lawful order from SFC x 2, a noncommissioned officer on or about 021025; 021025; and breaking restriction on or about 021012.  
       
       On 21 January 2003, 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 27 January 2003, the separation authority approved the discharge 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, 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.  
       
       The analyst noted the applicant's issues that he was having trouble within his chain of command and the allegations he raises; however, the analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       Further, the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial with an under other than honorable conditions discharge.  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.  
       
       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: 5 May 2010         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: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA















Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 

ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20090010727
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