Applicant Name: ????? Application Receipt Date: 2008/01/25 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: See DD Form 293 and attached documents submitted by the applicant. 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: 071217 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: B Co, 264th Med Bn, Fort Sam Houston, TX Time Lost: AWOL for 69 days (070614-070822), mode of return unknown. 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: 42 Current ENL Date: 070104 Current ENL Term: 5 Years ????? Current ENL Service: 00 Yrs, 09Mos, 05Days ????? Total Service: 00 Yrs, 09Mos, 05Days Includes 110 days of excess leave (070830-071217). Previous Discharges: None Highest Grade: E-4 Performance Ratings Available: Yes No MOS: None GT: NIF EDU: BS Physical Therapy Overseas: None Combat: None Decorations/Awards: None V. Post-Discharge Activity City, State: Carmichael, CA Post Service Accomplishments: None Listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The applicant's record is void of the complete facts and circumstances concerning the events that led to a discharge from the Army (i.e, DD Form 458 Charge Sheet, the unit commander's recommendation for discharge and the separation approving authority's documentation) are not part of the available record and the analyst presumed Government regularity in the discharge process. However, the evidence of record shows that on 29 August 2007, the applicant consulted with legal counsel and voluntarily requested, in writing, (due to his charge of AWOL from 14 June 2007-22 August 2007), 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. Furthermore, 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 submitted a statement in his own behalf. The record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant’s signature. His DD Form 214 indicates that he was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service-in lieu of trial by court-martial, with service uncharacterized. Further, the DD Form 214 shows a Separation Code of KFS (i.e., for the good of the service-in lieu of trial by court-martial), with a reentry eligibility (RE) code of "4." On 11 December 2007, Department of Army, U.S. Army Installation Management Command, Headquarters U.S. Army Garrison, Fort Sill, OK, Orders 345-0667, discharged the applicant from the Regular Army, effective date: 17 December 2007. 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 available military records during the period of enlistment under review, the issues and documents he submitted, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge. The applicant’s record is void of the complete facts and circumstances concerning the events that led to a discharge from the Army. However, the applicant’s record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's signature. This document identifies the reason and characterization of the discharge and the analyst presumed Government regularity in the discharge process. The evidence of record shows that the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service-in lieu of trial by court-martial. In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. In the absence of information to the contrary, 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 that the applicant was in entry-level status when he returned from a period of AWOL (i.e., he had completed less than 180 days of continuous active duty). The applicant was charged with AWOL and while still in an entry-level status voluntarily requested discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. A Soldier is in entry-level status (ELS) for the first 180 days of continuous active duty. The purpose of the entry-level status is to provide the Soldier a probationary period. A general, under honorable conditions honorable discharge is not authorized under ELS conditions. Furthermore, the analyst noted the applicant's issue and found no evidence of arbitrary or capricious actions by the command. Additionally, 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. Finally, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.” An RE code of “4” can not be waived and the applicant is no longer eligible for reenlistment. 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: 19 November 2008 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: NA Witnesses/Observers: NA Exhibits Submitted: NA 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 President, Army Discharge Review Board Issue a new DD Form 214 Change Characterization to: Change Reason to: No Change Other: NA RE Code: Grade Restoration: No Yes Grade: None ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20080001454 ______________________________________________________________________________ Page 1 of 3 pages