Applicant Name:  ?????

Application Receipt Date: 2012/04/06	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he is asking for an upgrade due to his mental situation at the time.  He came home on emergency leave, because his grandmother became critically ill from a hospital to a nursing home in Texas, where she passed away at age 83.  She raised him and his two brother as a mom.  He was home exactly seven days out of 14 days leave when she passed away.  The funeral director had asked the family members to request for an autopsy because she had more than one fatal illness, and when the family members asked him for advice, he agreed.  He then called his unit in Fort Stewart, Georgia, to ask for an extension to cover himself.  He first spoke with his platoon sergeant who gave him a run around.  He directed him to the first sergeant, who was not available in his office, so he left numerous unanswered messages with the PAC NCOIC--he never received a return call.  He was fortunate to catch the first sergeant in the office one day and asked him for an extension, but that the first sergeant instead told him to talk to his platoon sergeant.  Although he informed him that he did already, the first sergeant then directed him to speak with the commander, which he did.  Although he explained to his commander his family situation and whether he was able to make it back on time, the commander refused to approve his request for extension and told him that his leave time would be up on whatever date.  The applicant concludes that he finally returned after midnight of the day he was to return from leave.  When he returned, he spent five to seven days in confinement for outprocessing and he was shipped out before he was able to sign his DD Form 214.

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: 011205
Discharge Received: 			   Date: 020117   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: Special Processing Company, U.S. Personnel Control Facility, Fort Knox, KY 

Time Lost: AWOL (001229-020211) for 45 days, unknown mode of return

Article 15s (Charges/Dates/Punishment): NIF

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  28
Current ENL Date: 990602    Current ENL Term: 03 Years  ?????
Current ENL Service: 	02 Yrs, 06 Mos, 00 Days ?????
Total Service:  		10 Yrs, 00 Mos, 28 Days (includes involuntary excess leave for 336 days (010216-020117)
Previous Discharges: 	RA (911105-960728) / HD
			RA (960729-990601) / HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 75H (Personnel Service Specialist)   GT: 104   EDU: HS Grad   Overseas: Somalia, Korea   Combat: None
Decorations/Awards: ARCOM-2; AAM; AGCM-2; NDSM; AFEM; AFSM; NPDR; ASR; OSR.




V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None listed.

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 15 February 2001, the applicant was charged with being absent without leave (001229-010212).  
       
       On 15 February 2001, 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 he could receive an under other than honorable conditions discharge and 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 the Chapter 10 request with an under other than honorable conditions discharge.  
       
       On 17 December 2001, the separation authority approved the Chapter 10 request and directed 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 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 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 that his discharge was unjust because of his attempts to obtain leave extension through his chain of command, but received no assistance.  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 may have been unjustly discriminated.  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.  
       
       
       
       Furthermore, the applicant contends he is entitled to an upgrade of his discharge because of mitigating circumstances which contributed to his misconduct.  Specifically, he claims family issues at home resulted in his discharge.  While the applicant may believe his family issues were the underlying cause of his misconduct, the record of evidence does not demonstrate that he sought relief from stress through the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.
       
       The analyst also noted the applicant's issue about his desire for VA benefits.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.
       
       Further, the analyst noted the applicant's request for a change to his Reentry Code, as well.  However, at the time of discharge, the applicant received an under other than honorable conditions characterization of service which constitutes a non-waivable disqualification, thus the applicant is no longer eligible for reenlistment. 
       
       In view of the foregoing, 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: 5 September 2012         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated 13 December 2011 w/self-authored statement; reference letter, dated 19 March 2012; DD Form 214 for service under current review.























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: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:




ARCHIE L. DAVIS III
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 AR20120007691
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