Applicant Name:  ?????

Application Receipt Date: 2009/07/14	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: -Characterization or discharge too harsh
       -Family and personal problems
       -Employment opportunities
       -Post service accomplishments
       -Young age and immaturity impaired ability to serve

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: 030206   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: HHC 1st BN 5th Cav Regiment, 2nd Brigade, 1st Cavalry Division, Fort Hood, TX. 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 021205, Failed to obey a lawful order issued by CPT on or about 021029; failed to go to his appointed place of duty on or about 021202; reduction to E-1, forfeiture of $257.00 pay per month for one month, extra duty and restriction for 14 days (CG).

021226, Failed to obey a lawful order issued by 1SG on or about 021205; forfeiture of $257.00 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:  20
Current ENL Date: 020117    Current ENL Term: 3 Years  0
Current ENL Service: 	01 Yrs, 01Mos, 02Days ?????
Total Service:  		01 Yrs, 01Mos, 02Days ?????
Previous Discharges: 	None
Highest Grade: E-1		Performance Ratings Available: Yes    No 
MOS: 19K10 Cavalry Scout   GT: 109   EDU: GED   Overseas: None   Combat: None
Decorations/Awards: NDSM, ASR

V.  Post-Discharge Activity
City, State:  Cleveland, OH
Post Service Accomplishments: Applicant completed 12 hours of anger Management Group Therapy. See attached Certificate of Achievement marked enclosure 8. 







VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The applicant’s record is void of the complete facts and circumstances concerning the events that led to the discharge from the Army.  However, the evidence of record does show that on 10 January 2003, the applicant was charged with striking two NCOs by pushing them out of the way with his body (021211), willfully disobeying a lawful order from two NCOs to get out of his vehicle and go to work (021211), using disrespectful language and deportment toward an NCO (021211), assaulting an NCO (020107), communicating a threat to injure an NCO (021010), and communicating a threat to kill an NCO (030107). 
       
       On 6 February 2003, 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.  Further, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  The DD Form 214 indicates that the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial with a characterization of service of under other than honorable conditions a Separation Code of KFS (i.e., in lieu of trial by court-martial) with a reentry eligibility (RE) code of "4."  
       
       The record contains a Military Police Report dated 17 September 2002. 

       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 only pertinent evidence available for review regarding the applicant's discharge was the DD Form 458, Charge Sheet, DD Form 214, Certificate of Release or Discharge from Active Duty, and the Separation Approving Authority approving the requested discharge.  The DD Form 214 shows the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  
       
       Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request 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.  In the absence of information to the contrary, 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.  It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant would have been aware of that prior to requesting discharge.  
       
       The analyst noted that the applicant's issues and determined that the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review.  The analyst further found that the applicant met entrance qualification standards to include age.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  
       Also 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. 
       
       Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  
       
       Therefore, based on the available evidence, the analyst presumes government regularity in the discharge process and concludes that it appears 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: 19 May 2010         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: Nine statements supporting the applicants request and a copy of a Certificate of Achievement showing successful completion of 12 hours of anger Management Group Therapy.

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: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: ?????






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 AR20090012961
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