Applicant Name: ????? Application Receipt Date: 2012/01/10 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that his discharge was a result of severe personal trauma caused by his wife's sudden death, while stationed in Germany. He returned to Florida on leave to attend his wife's funeral. While on leave, he was ordered to find a local recruiter's station and report to them pending a compassionate reassignment or permanent change of station (PCS) orders. The applicant states that he never received his orders and his command did not follow through. He states the burden of proof is on the Army to provide evidence that he did receive reassignment orders. The applicant contends a sergeant at the local recuiter's office told him to stop reporting in and just call in everyday. The applicant states his counsel advised him that he had a good case. However, the outprocessing unit advised him that he would not win if he took his case to court. He accepted the discharge as an easy but unfortunate choice. II. Were Proper Discharge and Separation Authority procedures followed? Tender Offer: None See Attachments: Legal Medical Minority Opinion Exhibits III. Discharge Under Review Unit CDR Recommended Discharge: Date: 110526 Discharge Received: Date: 110715 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: HHC, 12th CAB, Ansbach, Germany Time Lost: AWOL for 67 days (110211-110419), apprehended. 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: 45 Current ENL Date: 090310 Current ENL Term: 3 Years 13 weeks Current ENL Service: 2 Yrs, 01 Mos, 27 Days 53 days excess leave (110524-110715) Total Service: 2 Yrs, 01 Mos, 27 Days ????? Previous Discharges: None Highest Grade: E-4 Performance Ratings Available: Yes No MOS: 88M10/Motor Transport Op GT: 102 EDU: HS Grad Overseas: Germany Combat: None Decorations/Awards: NDSM, GWOTSM, ASR, OSR V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: None VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 23 May 2011, the applicant was charged with absenting himself from his unit (AWOL) (110211-110419). On 23 May 2011, 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 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 recommended approval of an under other than honorable conditions discharge. On 21 June 2011, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions. The applicant was reduced to the grade of E-1. 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 issues submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge. The evidence of record indicates that 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 that prior to requesting discharge. The applicant contends his discharge was a result of his wife's sudden death and the command not following through with his reassignment orders. While the applicant may believe this was the underlying cause of his discharge, he provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated his misconduct. The burden of proof remains with the applicant to provide the appropriate documents or other evidence for the Board's consideration. Moreover, The applicant contends that his discharge was unjust because he should have received a compassionate reassignment. However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that he was unjustly discharged. In fact, the applicant’s absence without leave until his apprehension and his voluntary request for a discharge in lieu of trial by court-martial justify the characterization of service he received. The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence in support of his request for an upgrade of his discharge. Therefore, the analyst determined 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: 23 May 2012 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 293 dated, 4 January 2012, DD Form 214, Florida death certificate dated, 1 December 2010. 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 2 No change 3 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: ????? Other: ????? RE Code: Grade Restoration: No Yes Grade: NA 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 AR20120000887 ______________________________________________________________________________ Page 1 of 4 pages