Applicant Name:  ?????

Application Receipt Date: 2009/08/14	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he requests an upgrade of his discharge to uncharacterized and a change to the reentry eligibility (RE) code.  He relates that he spoke with his commander about taking leave to handle the  problem and his commander told him that he did not care what he did; so he went AWOL to take care of the family emergency back home.  He claims he stayed clear of trouble, finished college and ran a successful business.  He feels that he was coerced into taking the discharge without having legal counsel to explain things to him during out-processing  and not allowed ample time to make a wise and informed decision.  Also, he feels his record was not given a proper review, his civilian record was spotless as was his military record through basic training and he was not granted the opportunity for rehabilitation.       

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: 081121
Discharge Received: 			   Date: 081223   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: B Co, 1-46th IN Regt, Fort Knox , KY 

Time Lost: AWOL for 268 days (070504-080126), surrendered. 

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:  31
Current ENL Date: 070221    Current ENL Term: 04 Years  ?????
Current ENL Service: 	01 Yrs, 01Mos, 10Days ?????
Total Service:  		01 Yrs, 01Mos, 10Days includes 54 days of excess leave (081031-081223)
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: None   GT: NIF   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: None

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 30 October 2008, the applicant was charged with AWOL (070504-080127).  On 30 October 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 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 submitted a statement in his own behalf.  The unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  
       
        On 5 December 2008, 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 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. 
       
       In essence the applicant’s separation action was initiated while the applicant was in an entry-level status and the command had the option to characterize the service as under other than honorable conditions or to describe it as uncharacterized. 
       
       Army Regulation 635-200 also provides, except in cases of serious misconduct, that a Soldier’s service will be uncharacterized when the separation is initiated while the Soldier is in entry level status.  The applicant was charged with AWOL and while still in an entry-level status voluntarily requested discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. 
       
       The analyst noted the applicant's issue that he went AWOL to take care of the family emergency.  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 evidence of record shows that the applicant consulted with legal counsel when he voluntarily requested discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial.  Further, 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.  
       
       After a full consideration of all faithful and honorable service as well as the infraction of discipline, the extent thereof, and the seriousness of the offense.  The analyst concluded that the discrediting entry in the applicant's record was not outweighed by service of sufficient merit to warrant a change to the discharge being reviewed.
        
       The analyst acknowledges the applicant's successful transition to civilian life and noted the many accomplishments outlined in the documents with the application.  However, in review of the applicant’s entire service record, the analyst found that these accomplishments did not overcome the reason for discharge and characterization of service granted.
       AR 635-200, paragraph 10-4c, states that use of this discharge authority is encouraged when the commander determines that the offense is sufficiently serious to warrant separation from the Service and that the Soldier has no rehabilitation potential. 
       
       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. 
       
       Therefore, the analyst determined that the reason for discharge, the characterization of service to include 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: 2 July 2010         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: The applicant submitted a DD Form 149 and the following documents:  Self-Authored Statement;  Continuation of Block 6 on DD Form 149; DD Form 458 (Charge Sheet), dated (081030); DD Form 214, dated (081223); Memorandum, Chief, Congressional and Special Actions, dated (091015); Letter, United States Senate, dated (091006); Privacy Act Consent Form, dated (090812); Applicant's Letter to Senator three (3) pages; FOUO Congressional two (2) pages, dated (091013); Excerpt from Chapter 10, three (3) pages;  

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: None





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 AR20090014148
______________________________________________________________________________

Page 3 of 3 pages