Applicant Name:  ?????

Application Receipt Date: 200/06/29	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See enclosed DD Form 293 submitted by the Applicant.  The applicant claims that she was wrongly advised by her counsel “not to fight my case”.

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 dated
Discharge Received: 			   Date: 080725   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: Division Special Troops Bn (Rear) (Provisional), 10th Mountain Div (Light Inf) Ft. Drum, NY 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 080131 on or about 13 January 2008 at or near Ft. Drum, NY assault a SGT by striking at him with her fist; reduction to E1, forfeiture of $312 of basic pay for one month extra duty and restriction for 14 days and oral reprimand (CG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 070427    Current ENL Term: 3 Years  24 weeks
Current ENL Service: 	01 Yrs, 02Mos, 29Days ?????
Total Service:  		01 Yrs, 02Mos, 29Days ?????
Previous Discharges: 	None
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 63B10 Wheeled Vehicle Mech   GT: 104   EDU: GED   Overseas: None   Combat: None
Decorations/Awards: NDSM, ASR

V.  Post-Discharge Activity
City, State:  Forest Hills, Queens , NY
Post Service Accomplishments: Nothing provided by the applicant.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 21 May 2008, the applicant was charged with resisting apprehension, assaulting a SGT, assaulting a SSG, unlawfully bite a SSG, unlawfully strike a SPC, wrongfully communicate a threat to injure a SGT, wrongfully communicate a threat to injure a PFC and wrongfully overindulge in intoxicating liquor (080201).  On 30 June 2008, 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 she understood that she 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 her own behalf.  The unit commander and intermediate commander recommended approval of an under other than honorable conditions discharge.  On 22 July 2008, the separation authority approved the discharge with a characterization of service of under other than honorable conditions.  The applicant was to be reduced to the lowest enlisted rank. 
       
       The analyst noted that the applicant’s record contained a Military Police Report dated 2 February 2008.
       
       The analyst noted the applicant had a Moral Waiver approved dated 9 April 2007 in the file to enable her to enlist.
       

       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 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 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 applicant contends that she was wrongly advised by her counsel but the record shows that after she was charged with multiple offenses she voluntarily chose to request a discharge in lieu of a court martial.   The analyst found no evidence of arbitrary or capricious actions by the command and was satisfied that all 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: 7 April  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 1    No change 4
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 AR20090012077
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