Applicant Name: ????? Application Receipt Date: 2010/11/10 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that would like to be able to receive his benefits, because his eligibility to receive benefits are in question due to the type of discharge he received. 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: 060607 Discharge Received: Date: 060623 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: E Company, 26th Forward Support Battalion, Fort Stewart, GA Time Lost: AWOL x1 from (050813-050826) for 14 days. The applicant returned to his unit. Article 15s (Charges/Dates/Punishment): 050909, through neglect, missed the movement of his return flight from R & R leave, which he was required in the course of duty to move (050813), AWOL from (050813-050826), forfeiture of $288.00 pay and extra duty for 14 days (CG) 050526, wrongfully used marijuana between on or about (041116-041216), reduction to the grade of Private (E-1), forfeiture of $617.00 pay per month for 2 months and extra duty for 45 days (FG). Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 24 Current ENL Date: 020313 Current ENL Term: 6 Years The applicant required a moral waiver at the time of enlistment, which was approved on (020129). Current ENL Service: 4 Yrs, 2 Mos, 27 Days The net active service this period on the DD Form 214, block 12c is incorrect; should be as annotated above. The applicant has a period of AWOL, which was not shown on the DD Form 214, in block 29, Time Lost. Total Service: 4 Yrs, 2 Mos, 27 Days ????? Previous Discharges: None Highest Grade: E-4 Performance Ratings Available: Yes No MOS: 63H10 Tracked Vehicle Mech GT: 107 EDU: HS Grad Overseas: Southwest Asia Combat: Kuwait/Iraq x 2 (030120-030801), (050116-060110) Decorations/Awards: NDSM, ICMDL, GWOTEM, GWOTSM, ASR, OSR 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 16 May 2006, the applicant was charged with disobeying a lawful order from 1SG, a superior noncommissioned officer on (060315), disrespectful in language toward 1SG, a superior noncommissioned officer on (060315), and wrongfully used marijuana between on or about (060226-060328). On 5 June 2006, 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 commander's recommended approval of an under other than honorable conditions discharge. On 9 June 2006, 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. The record contains a CID Report of Investigation in reference to the applicant's offense of wrongfully using marujuana dated 20 January 2005. 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, 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 he would like to be able to receive his benefits, because his eligibility to receive the benefits are in question due to the type of discharge he received. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 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: 13 July 2011 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 293 dated 8 November 2011. 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: 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 AR20100027742 ______________________________________________________________________________ Page 1 of 3 pages