Applicant Name:  ?????

Application Receipt Date: 2011/11/17	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, he is requesting an upgrade because of the type of discharge that he received was not relevant, due to the circumstances behind his discharge.  After serving honorably, he received an Other Than Honorable Discharge for reasons he feels were not warranted and for actions not in his control.  On 3 August 2005, he reported for duty at Fort. Stewart, GA.  On 17 September 2005, he received a Red Cross message through his company that his step-brother had died.  He was granted seven days of leave by the acting commanding officer (CPT B), starting 19 September 2005 through 23 September 2005.  He drove six hours from Fort. Stewart, GA to Louisville, KY, on 18 September 2005.  While on leave, he experienced car trouble on 23 September 2005.  He called and spoke to the acting 1SG and explained that he had a maintenance appointment on 28 September 2005.  The acting 1SG informed him that everything would be ok with his leave being extended.and he would inform the commander.  He then told him to call back to the unit the following Monday on September 26, 2005 to keep him updated with what was going on with his car.  On Saturday, 24 September 2005, he was able to get in touch with his squad leader to tell him what was going on and what he had discussed with the acting 1SG.  

On 26 September 2005, he received a call from his team leader and was told that he needed to get back to the unit ASAP because he was AWOL.  He received a phone call back from his team leader and informed him that the acting  1SG stated that he didn’t have a conversation with him and that he was AWOL.  Once his car was repaired, he drove back to Fort Stewart and arrived late on 27 September 2005.  He reported to formation the next morning on September 2005.  This is when he was informed that he was going to be written up for a summary court-martial for being AWOL. He went to JAG and was told that he had a good defense but he probably wouldn’t win because the persons conducting the court-martial would take the 1SG's word.  After a couple of weeks, he went for one of his meetings with JAG and found out that he had the option to take a voluntary Chapter 10 under AR-635-200 and avoid possibly losing the court-martial by the advice of his lawyer.  He didn’t want to leave the military, but at the same time, he didn’t want to be punished for a crime that he didn’t commit.  He chose to take the Chapter 10 and end his military career.

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: 060331   Chapter: 10       AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: 92d Engineer Battalion (Rear), Division Support Brigade, 3rd Infantry Division, Fort Stewart, GA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 051031, AWOL (050925-050827), reduction to E-2 (suspended), forfeiture of $382.00 for one month. (CG)

Suspension of punishment of reduction to E-2 was vacated for reckless driving by drag racing against another vehicle (051204)

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 



IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 041217    Current ENL Term: 03 Years  ?????
Current ENL Service: 	01 Yrs, 03 Mos, 14 Days ?????
Total Service:  		04 Yrs, 09 Mos, 19 Days ?????
Previous Discharges: 	`RA-010621-041216/HD
                                        (Immediate Reenlistment)
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 21R10 Interior Electrician   GT: 88   EDU: HS Grad   Overseas: SWA   Combat: Kuwait and Iraq (040111-050111)
Decorations/Awards: NDSM, ICM, GWOTSM, ASR, OSR

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: Received a diploma from Wyotech and attended truck driving school

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 12 January 2006, the applicant was charged with failing to go to his appointed place of duty at the prescribed time x 4 (051005, 051214, 051221, and 060105) and disrespectful in language towards a noncommissioned officer (051221).
       
       On 9 March 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 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 15 March 2006, 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 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 and documents 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 applicant contends he is requesting an upgrade because of the type of discharge that he received was not relevant due to the circumstances behind his discharge and for actions not in his control.  He had car problems while returning from Emergency Leave and called his acting 1SG and requested an extension.  His 1SG denied ever having the conversation and he was charged with being AWOL.  The analyst noted the applicant's issues; however, a review of the DD Form 458 (Charge Sheet), dated 12 January 2006, reveals the applicant was charged with failing to go to his appointed place of duty at the prescribed time on four different occasions (051005, 051214, 051221, and 060105) and being disrespectful in language towards a noncommissioned officer (051221).  The AWOL issue was not listed as a  reason for the applicant's discharge.  Therefore, 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 or documentation to support the contention that he was unjustly discharged.  The applicant’s statement alone does not overcome the government’s presumption of regularity in this case.  

           Furthermore, the applicant contends he went to JAG and was told that he had a good defense but he probably wouldn’t win because the persons conducting the court-martial would take the 1SG's word.  So in order to avoid possibly losing the court-martial by the advice of his lawyer, he accepted the Chapter 10.  The analyst weighed the applicant's contentions; however, the analyst found no evidence of arbitrary or capricious actions by the command or with the legal proceedings in the discharge process.  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.  

            Additionally, the analyst acknowledges the applicant's successful transition to civilian life and noted the many accomplishments outlined with the application and in the documents with the application.  However, in review of the applicant’s entire service record, the analyst found that these accomplishments did not overcome the reason for discharge and characterization of service granted.  Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  

           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: 9 May 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293; DD Form 214; a self-authored statement, dated 7 November 2011; a copy of a diploma from Wyo Tech College, dated 24 June 2011; and a copy of a Nextel phone record, dated 21 October 2005











 

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 characterization of service was too harsh based on the applicant’s length and quality of his service to include his combat service and the circumstances surrounding his misconduct and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  The Board determined that the reason for discharge was proper and equitable and voted not to change it.  This action entails restoration of grade to E-2/PVT.
        
IX.  Board Decision						
Board Vote:
Character - Change 4    No change 1
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: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: E-2

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 AR20110022945
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