Applicant Name: ????? Application Receipt Date: 2009/08/14 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he requests an upgrade of his discharge to uncharacterized and a change to the reentry eligibility (RE) code. He relates that he spoke with his commander about taking leave to handle the problem and his commander told him that he did not care what he did; so he went AWOL to take care of the family emergency back home. He claims he stayed clear of trouble, finished college and ran a successful business. He feels that he was coerced into taking the discharge without having legal counsel to explain things to him during out-processing and not allowed ample time to make a wise and informed decision. Also, he feels his record was not given a proper review, his civilian record was spotless as was his military record through basic training and he was not granted the opportunity for rehabilitation. 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: 081121 Discharge Received: Date: 081223 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: B Co, 1-46th IN Regt, Fort Knox , KY Time Lost: AWOL for 268 days (070504-080126), surrendered. 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: 31 Current ENL Date: 070221 Current ENL Term: 04 Years ????? Current ENL Service: 01 Yrs, 01Mos, 10Days ????? Total Service: 01 Yrs, 01Mos, 10Days includes 54 days of excess leave (081031-081223) Previous Discharges: None Highest Grade: E-3 Performance Ratings Available: Yes No MOS: None GT: NIF EDU: HS Grad Overseas: None Combat: None Decorations/Awards: None 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 30 October 2008, the applicant was charged with AWOL (070504-080127). On 30 October 2008, 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 submitted a statement in his own behalf. The unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge. On 5 December 2008, the separation authority approved the Chapter 10 request 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 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 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. In essence the applicant’s separation action was initiated while the applicant was in an entry-level status and the command had the option to characterize the service as under other than honorable conditions or to describe it as uncharacterized. Army Regulation 635-200 also provides, except in cases of serious misconduct, that a Soldier’s service will be uncharacterized when the separation is initiated while the Soldier is in entry level status. 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. The analyst noted the applicant's issue that he went AWOL to take care of the family emergency. 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. The evidence of record shows that the applicant consulted with legal counsel when he voluntarily requested discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. Further, 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. After a full consideration of all faithful and honorable service as well as the infraction of discipline, the extent thereof, and the seriousness of the offense. The analyst concluded that the discrediting entry in the applicant's record was not outweighed by service of sufficient merit to warrant a change to the discharge being reviewed. The analyst acknowledges the applicant's successful transition to civilian life and noted the many accomplishments outlined in the documents with the application. However, in review of the applicant’s entire service record, the analyst found that these accomplishments did not overcome the reason for discharge and characterization of service granted. AR 635-200, paragraph 10-4c, states that use of this discharge authority is encouraged when the commander determines that the offense is sufficiently serious to warrant separation from the Service and that the Soldier has no rehabilitation potential. 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, the characterization of service to include the reentry eligibility (RE) code 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: 2 July 2010 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: NA Witnesses/Observers: NA Exhibits Submitted: The applicant submitted a DD Form 149 and the following documents: Self-Authored Statement; Continuation of Block 6 on DD Form 149; DD Form 458 (Charge Sheet), dated (081030); DD Form 214, dated (081223); Memorandum, Chief, Congressional and Special Actions, dated (091015); Letter, United States Senate, dated (091006); Privacy Act Consent Form, dated (090812); Applicant's Letter to Senator three (3) pages; FOUO Congressional two (2) pages, dated (091013); Excerpt from Chapter 10, three (3) pages; 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: NA RE Code: Grade Restoration: No Yes Grade: None 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 AR20090014148 ______________________________________________________________________________ Page 3 of 3 pages