Application Receipt Date: 060728 Prior Review Prior Review Date: None I. Applicant Request Request: Upgrade Reason Change RE Code Change Issues: See applicant's attached DD Form 293. II. Were Proper Discharge and Separation Authority procedures followed? Yes No Tender Offer: ????? See Attachments: Legal Medical Minority Opinion Exhibits III. Original Character of Discharge Unit CDR Recommended Discharge: Date: 051213 Discharge Received: Date: 051227 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: Home Detachment, 5th Battalion, 3rd Field Artillery, Fort Sill, OK 73503 Time Lost: The applicant's DD Form 214 shows no periods of AWOL, however, Personnel Action Forms (DA Form 4187's) found in the applicant's military record, shows 2 periods of lost time due to AWOL for a total of 21 days (051111 to 051115 and 051118 to 051205). Article 15s (Charges/Dates/Punishment): 051012/Disobeying a lawful order from a senior noncommission officer (SFC) on or about (050818), disrespectful in language towards a warrant officer (WO1) on or about (050818), and failed to go at the time prescribed to his appointed place of duty X3 on or about (050810, 050816 and 050817)/(Company Grade) Court-Martials (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record DOB: 830209 Current ENL Date: 050106 Current ENL Term: 03 Years 26 Weeks Current ENL Service: 00 Yrs, 10Mos, 29Days (The applicant's DD Form 214 incorrectly shows in item 12c (Net Active Service This Period) yrs 00, mons 11, and days 22, should show ; yrs 00, mons 11, and days 01, base on two periods of AWOL (051111-051114 and 051118-051204) Total Service: 00 Yrs, 11Mos, 01Days ????? Previous Discharges: None Highest Grade: E2 Performance Ratings Available: Yes No MOS: 63B10 (Wheeled Vehicle Mechanic) GT: 95 EDU: HS Grad Overseas: None Combat: None Decorations/Awards: NDSM, ASR, GWOTSM V. Post-Discharge Activity Home of Record: Current Address: Post Service Accomplishments: None Listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 9 December 2005, the applicant was charged with failure to go to his appointed place of duty x 4: 20 October 2005, 25 October 2005, 8 November 2005 and 17 November 2005; AWOL x 2, from 11 November 2005 to 15 November 2005 and 18 November 2005 to 5 December 2005; and wrongful use of marijuana between on or about 30 August 2005 and on or about 30 September 2005. On 12 December 2005, 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 and intermediate commanders recommended approval of an under other than honorable conditions discharge. On 14 December 2005, the separation authority approved the discharge with an under other than honorable conditions 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 individual’s 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 applicant’s military records, and the issue he submitted, 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. Therefore, the reason for discharge and the characterization of service remains both proper and equitable. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 25 July 2007 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: NA Witnesses/Observers: NA Exhibits Submitted: NA VIII. Board Decision The discharge was: Proper Improper Equitable Inequitable The characterization of service was: Proper Improper Equitable Inequitable The narrative reasons were: Equitable Inequitable DRB voting record: Change 0 No change 5 - Character Change 0 No change 5 - Reason (Board member names available upon request) IX. 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. Case report reviewed and verified by: Eric S. Moore, Examiner X. Board Action Directed No Change 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 and Date Approval Authority: MARK E. COLLINS Colonel, U.S. Army President, Army Discharge Review Board Official: MARY E. SHAW DATE: 1 August 2007 Lieutenant Colonel, U.S. Army Chief, Secretary Recorder ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20060010471 Applicant Name: Mr. ______________________________________________________________________ Page 2 of 5 pages