Application Receipt Date: 060828 Prior Review Prior Review Date: Records/2005/05/11 Records/2004/01/07 I. Applicant Request Request: Upgrade Reason Change RE Code Change Issues: See DD Form 293 with five (5) enclosures 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: 030305 Discharge Received: Date: 030328 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: 63rd Engineer Company, 36th Engineer Group, Fort Benning, GA 31905 Time Lost: None Article 15s (Charges/Dates/Punishment): 020205, Failed to go to his appointed place of duty x 2, (011024), (011220) and without authority, left his appointed place of duty (020110), (Company Grade) Court-Martials (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record DOB: 780807 Current ENL Date: 000211 Current ENL Term: 4 Years ????? Current ENL Service: 3 Yrs, 1 Mos, 18 Days ????? Total Service: 3 Yrs, 1 Mos, 18 Days ????? Previous Discharges: None Highest Grade: E4 Performance Ratings Available: Yes No MOS: 62E1P Heavy Construction Equipment GT: 90 EDU: HS Grad Overseas: None Combat: None Decorations/Awards: ASR 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 6 February 2003, the applicant was charged with failing to go to his appointed place of duty x 4, (021112), (021030), (020930), (020403), without authority, go from his appointed place of duty on various divers occasions, between on or about (030102-030205), disobeyed a lawful order from a SGT (020514), did tret with contempt, a SGT by yelling, rolling his eyes and saying to him "you are a bitch" (020918), disobeyed a lawful order from a SFC (021104). 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 7 March 2003, 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. 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. Furthermore, eligibility for veteran's benefits to include educational benefits under the 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 reason for discharge and the characterization of service remains both proper and equitable. Subsequently, the applicant was heard by the Army Discharge Review Board on 11 May 2005, and was granted partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 17 April 2007 Location: Chicago, IL Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: None Exhibits Submitted: The applicant submitted a character reference letter in support of his testimony. 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 No change (Character) Change No change (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, hearing his testimony and considering the analyst’s recommendation and rationale, the Board determined that the characterization of service was too harsh, and as a result it is inequitable. The Board does not condone the applicant’s misconduct; however, determined that the nature of the offense and the circumstances surrounding the discharge, mitigated the discrediting entry 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. This action entails a restoration of grade to PFC/E-3. Case report reviewed and verified by: Mr. Ron Williams, Examiner X. Board Action Directed No Change Issue a new DD Form 214 Change Characterization to: Change Reason to: None Other: None RE Code: Grade Restoration: No Yes Grade: PFC/E-3 XI. Certification Signature and Date Approval Authority: MARK E. COLLINS Colonel, U.S. Army President, Army Discharge Review Board Official: MARY E. SHAW DATE: 4 May 2007 Lieutenant Colonel, U.S. Army Chief, Secretary Recorder ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20060012207 Applicant Name: Mr. ______________________________________________________________________ Page 6 of 6 pages