Applicant Name: ????? Application Receipt Date: 2009/10/20 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states in effect, that he was having marital problems and was depressed that led to him using marijuana. He came up positive on a urinalysis and was given an Article 15. He asked his Section Sergeant for help and did not get any. He was depressed with suicidal thoughts and found no alternative but to leave and stay away until he could stop using drugs. He turned himself in and was not clear on the explanation of a less than honorable discharge and would not have signed the paperwork had he realized that it was dishonorable. 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: 950615 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: 133rd Ordnance Company, Fort Sill, OK Time Lost: AWOL x 1 from (941205-950422) for a total of 138 days. The applicant surrendered to military authorities at Redstone Arsenal, AL and was transferred to Fort Knox, KY. Article 15s (Charges/Dates/Punishment): In the applicant's self-authored statement he submitted with his DD Form 293, he declares that he received an Article 15 for testing positive for marijuana. Courts-Martial (Charges/Dates/Punishment): NIF Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 26 Current ENL Date: Reenl/930422 Current ENL Term: 3 Years ????? Current ENL Service: 2 Yrs, 1Mos, 23Days ????? Total Service: 3 Yrs, 11Mos, 09Days The computation includes 50 days of excess leave from (950427-950615). Previous Discharges: RA 910219-930421/HD Highest Grade: E4 Performance Ratings Available: Yes No MOS: 27M10 MLRS Repairer/31U10 Signal Support System Spec GT: NIF EDU: NIF Overseas: Germany Combat: None Decorations/Awards: AGCM, NDSM, 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 applicant’s record is void of the specific facts and circumstances concerning the events that led to the discharge from the Army. However, 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. The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. Furthermore, the DD Form 214 shows a Separation Code of KFS (i.e., in lieu of trial by court-martial) with a reentry eligibility (RE) code of "3." 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 available military records and the issue submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge. The only pertinent evidence available for review regarding the applicant's discharge is the DD Form 214, Certificate of Release or Discharge from Active Duty, which was not authenticated by the applicant. The DD Form 214 shows the applicant was discharged under the provisions of Chapter 10, AR 635-200, 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. Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request 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. 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. It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant would have been aware of that prior to requesting discharge. The analyst noted the applicant's contentions that he was not given any help with his drug or martial problems or that he did not have a clear explanation of the discharge during his separation, nor were they carefully considered. However, the analyst is unable to determine whether his contentions have merit because the facts and circumstances leading to the discharge are unknown. The burden of proof remains with the former Soldier to provide the appropriate documents or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration. If the applicant desires a personal appearance hearing, it will still be his [her] responsibility to meet the burden of proof since the evidence is not available in the official record. Therefore, based on the available evidence, the analyst presumes government regularity in the discharge process and concludes that it appears 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: 20 August 2010 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 293 dated 6 october 2009. 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 AR20090018425 ______________________________________________________________________________ Page 1 of 3 pages