Applicant Name:  ?????

Application Receipt Date: 2011/07/07	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he would like an upgrade of his discharge because of age and immaturity.  

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: 090227
Discharge Received: 			   Date: 090327   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: B Co, 1/2d Cav Regt, Vilseck, Germany 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 071221, Wrongful use of marijuana between (070701 and 070801), punishment received was not found in the records, however, the applicant's counsel does make reference to the Article 15 and that the punishment consisted of reduction from E3 to E1 and forfeiture of a half months pay for one month, (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 050526    Current ENL Term: 03 Years  16 Weeks
Current ENL Service: 	03 Yrs, 10  Mos, 02 Days Retained in Service 194 days for the convenience of the government.
Total Service:  		03 Yrs, 10  Mos, 02 Days ?????
Previous Discharges: 	None
Highest Grade: E3		Performance Ratings Available: Yes    No 
MOS: 11C10/Indirect Fire Infantryman   GT: 108   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq (070813-081019)
Decorations/Awards: ARCOM, NDSM, ICM,-w/CS, GWOTSM, ASR, OSR-2

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 27 February 2009, the applicant was charged with wrongful use of marijuana x 2 between (070701 and 070801 and 081205 and 090105) damage of government property (081031), failure to go at the time prescribed to his appointed place of duty x 3 (081204, 081208, and 080206).
       
       On 2 March 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 he understood he could receive an under other than honorable conditions discharge and 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 applicant's chain of commands recommendation is not contained in the available record and the analyst presumed government regularity in the discharge process.
       
       On 17 March 2009, the separation authority approved the Chapter 10 request and directed an under other than honorable conditions discharge.
       
       The applicant's record contains a Military Police Report, dated 14 September 2007 and 31 October 2008.

       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 during the period of enlistment under review, the issues, and documents 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.  
       
       Furthermore, the applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a Soldier.  The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of service below that meriting a fully honorable discharge.  
       
       
       
       
       
       
       Further, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states that the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  Further, AR 600-85, paragraph 3-8 entitled self referrals; states that the applicant could have self referred himself to the Army Substance Abuse Program (ASAP) counseling center for assistance, which the record is vold of any evidence.
       
       The narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 10, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this chapter is "In Lieu of Trial by Court-Martial," the separation code is "KFS", and the reentry code at the time was "RE 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, separation code, entered in block 26, and RE Code, entered in block 27 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.  
       
       The applicant contends that he was young and immature at the time of discharge, however, the analyst noted that the applicant met entrance qualification standards to include age.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.
       
       The evidence of record shows that the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.
       
       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.  
       
       The analyst noted the applicant's issue about his Combat Infantryman Badge; however, this issue does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), utilizing the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization. 
       
       In view of the foregoing, 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: 20 April 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: [ redacted ]

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, Support Statement, dated 9 June 2010, Reference Letters (5), Letters from: Southern Crescent Technical College,Metropolitan Serenity House, dated 19 July 2010DD Form 214 for the period of service under review.




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 characterization of service was too harsh, and as result it is inequitable.  The Board found that the length and quality of the applicant's service to include his combat service, mitigated the discrediting entries in his service record.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to fully honorable.  However, the Board determined that the reason for discharge was both proper and equitable and voted not to change it.  
        
IX.  Board Decision						
Board Vote:
Character - Change 5    No change 0
Reason -     Change 0    No change 5
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:




EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder












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 AR20110013871
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