Applicant Name: ?????
Application Receipt Date: 2009/07/21 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: NIF
Discharge Received: Date: 971210 Chapter: 10 AR: 635-200
Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: HQ Co, USACAC & Fort Leavenworth, KS
Time Lost: AWOL x 1 for 344 days (961016-970924), surrendered.
Article 15s (Charges/Dates/Punishment): NIF
Courts-Martial (Charges/Dates/Punishment): None
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 18
Current ENL Date: 920601 Current ENL Term: 06 Years ?????
Current ENL Service: 04 Yrs, 06Mos, 26Days Includes 69 days of excess leave (971003-971210).
Total Service: 04 Yrs, 06Mos, 26Days ?????
Previous Discharges: None
Highest Grade: E4 Performance Ratings Available: Yes No
MOS: 74B10/Information Systems Operator GT: NIF EDU: HS Grad Overseas: Korea Combat: None
Decorations/Awards: AAM-4, NDSM, ASR, OSR
V. Post-Discharge Activity
City, State: Abbeville, LA
Post Service Accomplishments: None Listed
VI. Facts, Circumstances, and Legal Basis for Separation
a. Facts and Circumstances:
The applicants record is void of the facts and circumstances concerning the events that led to the discharge from the Army. However, the record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicants 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. Furthermore, the DD Form 214 shows a Separation Code of KFS (i.e., in lieu of trial by court-martial) with a reentry eligibility (RE) code of "3". Evidence of record further shows that on 4 December 1997, Orders 338-0160, DA, US Army Field Artillery School and Fort Sill, Fort Sill, OK, discharged the applicant from the Regular Army, effective date: 10 December 1997.
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 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 available military records during the period of enlistment under review, the documents, and the issues submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.
The applicants record is void of the facts and circumstances concerning the events that led to a discharge from the Army. The analyst noted that the applicants record contains a properly constituted DD Form 214, Certificate of Release or Discharge from Active Duty, which was not authenticated by the applicant. This document identifies the reason and characterization of the discharge and the analyst presumed government regularity in the discharge process. The evidence of record 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 an offense 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's 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.
Furthermore, the analyst noted the applicant's issues; however, the analyst found no evidence of arbitrary or capricious actions by the command. Further, the narrative reason specified by Army Regulations for a discharge under this chapter 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.
In view of the foregoing, the analyst determined that the reason for discharge, the characterization of service, and the reentry eligibility (RE) code 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: 24 Feburary 2010 Location: Dallas, TX
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 AR20090013279
______________________________________________________________________________
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