Applicant Name: ?????
Application Receipt Date: 2011/03/22 Prior Review: Prior Review Date: NA
I. Applicant Request: Upgrade Reason Change RE Code Change
Issues: The applicant states, in effect, that the charges against her were dropped and she accepted a separation in lieu of a court-martial.
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: 090819
Discharge Received: Date: 090903 Chapter: 10 AR: 635-200
Reason: In Lieu of Trial by Court-martial RE: SPD: KFS Unit/Location: HQ & HQ Company, 525th Battlefield Surveillance Brigade, Fort Bragg, NC
Time Lost: AWOL x 1 from 070921-0908080 for 683 days. The applicant surrendered to the military authorities at Fort Knox, KY.
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: 24
Current ENL Date: 060612 Current ENL Term: 4 Years ?????
Current ENL Service: 1 Yrs, 4 Mos, 3 Days The net active service this period on the DD Form 214, block 12c is incorrect; should be as annotated above. Also, the applicant required a medical waiver at the time of enlistment, which was approved on (060515).
Total Service: 1 Yrs, 4 Mos, 3 Days ?????
Previous Discharges: None
Highest Grade: E-2 Performance Ratings Available: Yes No
MOS: 92A10 Automated Logistical Spec GT: 90 EDU: GED Cert Overseas: None Combat: None
Decorations/Awards: GWOTSM, 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 13 August 2009, the applicant was charged with AWOL from (070921-090808). On 18 August 2009, 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 she understood that she 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 her own behalf. The unit commander and intermediate commander's recommended approval of an under other than honorable conditions discharge. On 28 August 2009, 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 individuals 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 applicants 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 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 the applicant was aware of it prior to requesting discharge.
The analyst noted the applicant's issue that the charges against her were dropped and she accepted a separation in lieu of a court-martial. Army Regulation 635-200, Chapter 10 of the regulation provides, in pertinent part, that a soldier who has committed an offense or offenses, the punishment for which under the UCMJ and the Manual for Courts-Martial, 202 (MCM 2002), includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of a trial by court-martial.
The regulation further states that a discharge request may be submitted after court-martial charges are preferred against the soldier or, where required, after referral, until final action by the court-martial convening authority. The evidence of record shows that the applicant consulted with legal counsel and voluntarily requested a discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, which after the discharge request was submitted the separation convening authority approved the applicant's discharge; dismissed the charges and specifications on the effective date of her discharge.
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: 7 October 2011 Location: Washington, DC
Did the Applicant Testify? Yes No
Counsel: None
Witnesses/Observers: NA
Exhibits Submitted: DD Form 293 dated
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 AR20110005712
______________________________________________________________________________
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