IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110006103 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states the Army Discharge Review Board (ADRB) decision is unclear.  He requires medical care and would like to utilize the Department of Veterans Affairs (VA) medical services.

3.  The applicant provides copies of his ADRB decisional document and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 9 July 1991 and served continuously to 22 January 2010.  His last enlistment commenced on 11 August 2003.

2.  He attained the rank of sergeant first class (E-7) with foreign service in Hawaii, Bosnia, Egypt, Southwest Asia, Korea, Afghanistan, and two tours in Iraq.

3.  On 27 November 2009, the applicant was charged with wrongfully engaging in sexual contact on three occasions (with two privates and a sergeant), wrongfully touching a sergeant and a private (subject to his orders), and being disrespect towards a second lieutenant and a captain. 

4.  On 29 December 2009, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In his request, the applicant admitted guilt to the offense(s), or a lesser included offense(s).  Further, the applicant indicated that he understood he could receive a UOTHC discharge, and that the discharge would have a significant effect on eligibility for veteran’s benefits.  The applicant submitted a statement in his own behalf.  He outlined his 18 plus years of service, numerous awards, and combat service.  He also requested that these factors be weighed against his misconduct.  

5.  On 4 January 2010, the separation authority approved the request with a UOTHC discharge and directed that he be reduced to the lowest enlisted grade.

6.  On 22 January 2010, the applicant was discharged.  His DD Form 214 lists his awards as the Afghanistan Campaign Medal with bronze service star, Iraq Campaign Medal with two bronze service stars, Bronze Star Medal (2nd Award), Army Commendation Medal (2nd Award), Army Achievement Medal (7th Award), Good Conduct Medal (6th Award), National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Korea Defense Service Medal, Armed Forces Service Medal, Iraq Campaign Medal with bronze service star [duplicate entry], Noncommissioned Officer Professional Development Ribbon with Numeral 3, Army Service Ribbon, Overseas Service Ribbon (4th Award), North Atlantic Treaty Organization Medal, Multinational Force and Observers Medal, Combat Infantryman Badge, Expert Infantryman Badge, Pathfinder Badge, Parachutist Badge, and Air Assault Badge.

7.  On 8 November 2010, the ADRB denied the applicant's request for an upgrade of his characterization of service, narrative reason for separation, and RE code.  The applicant was advised that the ADRB found no mitigating factors warranting an upgrade of his discharge.  He was charged with the commission of offenses punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  He consulted defense counsel, and voluntarily in writing, requested a discharge in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offense(s) or lesser-included offense(s) under the UCMJ.  All requirements of law and regulation were met and his rights were protected throughout the separation process.  Eligibility for veteran’s benefits to include medical service falls within the purview of the VA.  




8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the policies and procedures for enlisted personnel separations.  Chapter 3 outlines the criteria for characterization of service.  It provides the following:

	a.  an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriated when the quality of the Soldiers service generally has met the standards of acceptable conduct and performance of duty;

	b.  a general discharge is a separation under honorable conditions.  When authorized, it is issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an HD;

	c.  a UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier;

	d.  paragraph 3-7c(7) specifically addresses the issuance of a UOTHC discharge under the provisions of chapter 10 of this regulation; and

	e.  chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge is normally considered appropriate.  

9.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Articles 89, and 90.

10.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  It states a DD Form 214 is a summary of a Soldier's most recent period of continuous active duty, providing a brief, clear-cut record of active duty service as of the time issue upon release from active duty or discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the ADRB decision is unclear.  He requires medical care and would like to utilize VA medical services.

2.  The ADRB decisional document states, in effect, the applicant was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  He consulted with defense counsel, and voluntarily in writing, requested a discharge in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offense(s) or lesser-included offense(s) under the UCMJ.  All requirements of law and regulation were met and his rights were protected throughout the separation process.  His characterization of service, narrative reason for separation, and RE code are correct.  No mitigating factors warranting an upgrade of his discharge were found.  Eligibility for veteran’s benefits to include medical services falls within the purview of the VA.  

3.  Based on his record of indiscipline, the applicant's last period of service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory. Therefore, the applicant is not entitled to either a general or an honorable discharge. 

4.  The applicant did have prior honorable service for which the VA may administratively determine entitlement to medical care and/or benefits based on its own guidelines.  However, VA benefits are not within the purview of this Board.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _X______   ___
               CHAIRPERSON
       
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20110006103



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ABCMR Record of Proceedings (cont)                                         AR20110006103



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