Applicant Name:  ?????

Application Receipt Date: 2010/05/17	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that after his deployment to Iraq, the person who raised him was dying with cancer. He took leave to go and see her and she was in such bad shape, that he needed to stay with her. He asked the chain of command for permission for a hardship extension of his leave and it was denied. His AWOL was from the fact that he could not leave her alone. He would like to reenlist back into the Army if awarded an upgrade of his discharge.

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: 100226
Discharge Received: 			   Date: 100309   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: HQ & HQ Company, 1st Brigade Combat Team (Rear) (Provisional), 82nd Airborne Division, Fort Bragg, NC 

Time Lost: AWOL x 3 from (080722-080907) for 48 days, returned to his unit, AWOL from (081208-090301) for 82 days, surrendered to the military authorities at Fort Bragg, NC, AWOL from (091231-100215) for 46 days, returned to his unit.  Total time lost was 176 days.  

Article 15s (Charges/Dates/Punishment): 090529, AWOL from (081208-090302), forfeiture of $699.00 pay per month for two months, suspended, to be automatically remitted if not vacated before (091124), extra duty and restriction for 45 days (FG)

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  22
Current ENL Date: 080219    Current ENL Term: 5 Years  16 weeks/The applicant required a moral waiver at the time of enlistment, which was approved on (080207)
Current ENL Service: 	1 Yrs, 6 Mos, 25 Days The net active service this period on the DD Form 214, block 12c is incorrect; should be as annotated above. The applicant has a period of AWOL that was not shown on the DD Form 214, block 29, Time Lost.
Total Service:  		1 Yrs, 6 Mos, 25 Days ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 11B1P Infantryman   GT: 110   EDU: GED Cert   Overseas: Southwest Asia   Combat: Iraq (090820-091215)
Decorations/Awards: GWTSM, ICMDLw/CS, ASR, OSR

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 22 February 2010, the applicant was charged with AWOL from (091231-100216).  On 26 February 2010, 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 did not submit a statement in his own behalf.  The unit commander recommended approval of an under other than honorable conditions discharge.  On 1 March 2010, the separation authority approved the discharge 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 submitted with the 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 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 noted the applicant's issue that the person who raised him was dying with cancer and he took leave to go and see her and she was in such bad shape, that he needed to stay with her.  He asked the chain of command for permission for a hardship extension of his leave and it was denied.  His AWOL was from the fact that he could not leave her alone.  While the applicant may believe his family issue at home was the underlying cause of his misconduct, (i.e., AWOL), the record of evidence does not demonstrate that he sought relief from his family issue through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, American Red Cross and other resources available to all Soldiers.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct. 
       
       The applicant further contends that he would like to reenlist back into the Army.  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 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: 4 February 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293 dated 3 May 2010.

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: 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 AR20100015101
______________________________________________________________________________


Page 1 of 3 pages