Applicant Name: ?????
Application Receipt Date: 2009/11/05 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: The applicant states, in effect, that he wants his other than honorable conditions discharge upgraded to a general discharge; he tried to serve and wanted to, but just couldn't or wasn't able to. The punishment he got was too severe compared with today's standards. Also, he wants to reenlist at some point and finish his military obligation and would like to have item 14 addressed on his DD Form 214 where it shows no education.
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: 060711
Discharge Received: Date: 060807 Chapter: 10 AR: 635-200
Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: HQ & HQ Battery, 1st Battalion, 78th Field Artillery, Fort Sill, OK.
Time Lost: AWOL x 1 from (060401-060502) for a total of 31 days. The applicant surrendered to the military authorities at Fort Sill, OK.
Article 15s (Charges/Dates/Punishment): None
Courts-Martial (Charges/Dates/Punishment): None
Counseling Records Available: Yes No
IV. Soldiers Overall Record
Age at current enlistment: 19
Current ENL Date: 051228 Current ENL Term: 4 Years ?????
Current ENL Service: 0 Yrs, 6 Mos, 8 Days The computation includes 88 days of excess leave from (060512-060807)
Total Service: 0 Yrs, 6 Mos, 8 Days ?????
Previous Discharges: None
Highest Grade: E-1 Performance Ratings Available: Yes No
MOS: None GT: 105 EDU: HS Grad Overseas: None Combat: None
Decorations/Awards: 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 11 May 2006, the applicant was charged with AWOL from (060401-060502). On 12 May 2006, 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 veterans benefits. The applicant did not submit a statement in his own behalf. On 11 July 2006, the acting unit commander recommended approval of an under other than honorable conditions discharge. On 19 July 2006, the intermediate commander recommended approval of an under other than honorable conditions discharge. On 21 July 2006, the separation authority approved the request for discharge in lieu of trial by court-martial with issuance of an uncharacterized discharge.
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 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 issue that he tried to serve and wanted to, but just couldn't or wasn't able to. The applicant had many legitimate avenues through which to obtain assistance or relief (i.e., chaplain, Army Community Services), without committing the misconduct, which led to the separation action under review.
He contends further that the punishment he received was too severe compared with today's standards. However, the applicant consulted with defense counsel, and voluntarily in writing, requested separation from the Army in lieu of trial by court-martial and 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 veterans benefits.
Additionally, 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 correction that the applicant is requesting to be made on his DD Form 214 item 14 where it shows no education does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using DD Form 149 regarding this matter. An application for that Board can be obtained online or from the Veterans Administration.
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: 27 August 2010 Location: Washington, DC
Did the Applicant Testify? Yes No
Counsel: None
Witnesses/Observers: NA
Exhibits Submitted: The applicant submitted a DD Form 149 dated 28 August 2009, a copy of his DD Form 214 for the period of service ending 7 August 2006, and a DD Form 31 (Request and Authority for Leave) dated 5 May 2006.
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: No Change
Other: No Change
RE Code:
Grade Restoration: No Yes Grade: No Change
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 AR20090019436
______________________________________________________________________________
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