Applicant Name: ????? Application Receipt Date: 2011/07/29 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he wants to try and get back in the Army, but if he can't he would like for this type of characterization of service taken off of his DD Form 214 so that he can find a good paying job to support his family. 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: 070321 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: Company E, 2nd Battalion, 46th Infantry Regiment, 1st Armor Training Brigade, Fort Knox, KY Time Lost: AWOL x 1 (060416-060420) for 5 days, apprehended. Confined by the military authorities x 2 (060421-060424) for 4 days, (060430-060605-pre-trial) for 35 days. Total time lost was 44 days. 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: 27 Current ENL Date: 060202 Current ENL Term: 3 Years 18 weeks Current ENL Service: 1 Yrs, 0 Mos, 7 Days The computation includes 290 days of excess leave from (060605-070321). Also, the applicant required a moral waiver at the time of enlistment, which was approved on (060109). Total Service: 1 Yrs, 0 Mos, 7 Days ????? Previous Discharges: None Highest Grade: E-2 Performance Ratings Available: Yes No MOS: None GT: 91 EDU: HS Grad Overseas: None Combat: None Decorations/Awards: None 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 5 May 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. On 1 June 2006, the applicant was arraigned at Fort Knox, KY on the following offenses at a Special Court-Martial; AWOL x 2 (060416-060421), and AWOL (060430-060430). He was sentenced to a bad conduct discharge and confinement for 34 days. However, the findings of guilty and the sentence was disapproved. The applicant voluntarily requested discharge under the provisions of Chapter 10, AR 635-200, which was approved by the General Court-Martial Convening Authority with issuance of an under other than honorable conditions discharge. On 6 March 2007, 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, 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 wants to try and get back in the Army, but if he can't he would like for this type of characterization of service taken off of his DD Form 214 so that he can find a good paying job to support his family. 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. Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. Additionally, the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial” and the separation code is "KFS" with a reentry eligibility (RE) code of "4." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 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: 10 February 2012 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 293 dated 27 July 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 Board Vote: Character - Change 0 No change 5 Reason - Change 0 No change 5 (Board member names available upon request) X. Board Action Directed 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 XI. Certification Signature Approval Authority: EDGAR J. YANGER Colonel, U.S. Army President, Army Discharge Review Board BONITA E. TROTMAN Lieutenant Colonel, U. S. Army Secretary Recorder 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 AR20110015630 ______________________________________________________________________________ Page 1 of 4 pages