Applicant Name:  ?????

Application Receipt Date: 2010/01/29	Prior Review:     Prior Review Date: 091120, denied.   

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states:  "I received the denial for my request to upgrade my discharge. In the letter I have
received mentions how I was advised that I would get an Other Than Honorable Discharge, but I do not recall being told about any stipulation of that. It was known that that was a worst case scenario, but not that I specifically would be getting that discharge. None of my council asked me if I wanted to get out, or what I wanted to see happen. When I was going to see my council for the Court Martiat I knew I was not gUilty. I was told by both; my civilian attorney and my JAG attorney, that I should plead guilty since it was an AWOL charge and I tested positive for Marijuana upon my return to Fort Carson. They said it would be hard to get the charges dropped because I had tested positive for marijuana and it would be difficult to prove I was not guilty for not being where I was supposed to be when I was supposed to be there. This in reality was not completely true due to circumstances that were proven to be out of my control.  Besides testing positive on the drug test, I knew I was not guilty for going AWOL. On Dec. 4th 2008 I went to the judge to get sentenced, the Colonel judge asked me why I thought I was guilty before she sentenced me, I told her the truth, and the order of events that let us to her court room that day, as well as the fact that I was not guilty. I told her that on June 17, 2008 I got second degree burns on my arm that I had 3 different doctors tell me I would lose my arm from infection if I went back. I was also told by doctors to go see a plastic surgeon, in which I had an appointment with on June 23rd 2008, the Monday after my plane was supposed to leave back to Iraq. It was that Saturday, 2 days before my follow up appointment that they had marked me AWOL. I was still not cleared by the doctors at that time to return to duty. I talked to my Rear Detachment Commander, Captain A. S., the day of the accident as well as the days following up to my missed flight about what was going on and what to do and she told me to stay home and to get everything taken care of so I could re-deploy. She also stated she would handle everything else on her end, to include notifying my forwarding unit in Iraq. Once I got done with everything, she advised me to contact her again and she would set something up for me to get back to Iraq. My mother and I continuously attempted to contact her and failed.  She also never returned any of our calls nor did anyone else. I wanted to go back to Iraq as soon as I was cleared by the doctors for my arm, and it was never an idea in my mind to try and go AWOL. After I was done explaining this to the Judge, she called a recess and called the prosecution as well as my council into her chambers. When they returned the judge then stated they could not continue and released me from all my charges. Her exact words were "We cannot charge him with this, I don't see where he did anything wrong," and later on said that she didn't want to see this matter in her court room again. My council told me to go back where I was and they would contact me with further information on what was going to happen.  I had no clue what was happening, I thought that since the judge found me not guilty I would be  free to go and back to being a soldier. I never wanted to get out of the military, I wanted to go back and do what I was supposed to do for being a soldier, specifically a scout. I loved my job. I do not expect the board to change their decision, I just want the opportunity to be heard on my half of the story and for you to see the information I am sending with this letter. Thank you for taking the time to read this and the opportunity to go before the board."

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: 081218   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: Rear Det, 4-10 Cav Rgt, Fort Carson, CO 

Time Lost: 48 days, AWOL (080621-080729), apprehended by civilian authorities.

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:  18
Current ENL Date: 070215    Current ENL Term: 4 Years  18 weeks
Current ENL Service: 	01 Yrs, 08Mos, 17Days ?????
Total Service:  		01 Yrs, 08Mos, 17Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 19D10/Cavalry Scout   GT: 101   EDU: GED   Overseas: SWA   Combat: Iraq (071229-080530)
Decorations/Awards: NDSM, GWOTSM, ICM, ASR, OSR

V.  Post-Discharge Activity
City, State:  Colorado Springs, CO
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 11 January 2008, the applicant was charged with desertion, in that on 21 June 2008, without authority and with the intent avoid hazardous duty, namely, return to his home station for movement in return to Iraq, quit his unit, to wit:  C Troop, 4th Squadron, 10th Cavalry Regiment located at Camp Liberty, Iraq and did remain so absent until 29 July 2008 and wrongfully using marijuana between 7 July 2008 and       7 August 2008.   
       
       On 8 December 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 offenses of desertion and wrongful use of a controlled substance, or a lesser included offense.  Further, the applicant indicated he understood 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 did not submit a statement in his own behalf; however his counsel provided a statement requesting that the Chapter be approved in lieu of a court-martial.  The unit and intermediate commanders recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  
       
       On 15 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, 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 his application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge.  
       
       The evidence of record indicates that 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 he did not plead guilty to the AWOL charge and that the Judge found him not guilty.  However, the stipulation of fact contained in the record contradicts the applicant’s statement.  The record shows the applicant pled guilty to all charges and specifications which included desertion and wrongful use of marijuana.
       
       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 the applicant was aware of that prior to requesting discharge.   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.  
       
       The applicant provides medical documents that indicate that he was treated for burns while on R&R leave.  The record indicates the applicant suffered burns on his arm while removing a radiator cap.  His chain of command notified him that he needed to fly to Kuwait as scheduled and that he would be evaluated by military doctors; he missed his scheduled flight and was not heard from again until his apprehension by civilian authorities during a speeding violation stop.  The analyst 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 applicant requests a change to the narrative reason for his separation as well as a change to his reentry code.  However, he was discharged under the provisions of Chapter 10, AR 635-200, by reason of in lieu of a court martial with an under other than honorable conditions characterization.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial,” with a separation code of "LHJ" and a reentry code of “4.”  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.  Further, 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 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: 23 August 2010         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

Exhibits Submitted: Medical documents, a self-authored statement, and page 1 of OSA Form 172 from a previous records review by the Board.






 

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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: 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 AR20100008084
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