Applicant Name:  ?????

Application Receipt Date: 2012/09/04	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he was told that he would receive his Post 9/11 GI Bill and VA benefits, but he did not qualify for anything.  He served 12 months in Iraq and has PTSD.  He believes his prior unit made false promises.  He also has never received his per diem for his 2009-2010 tour.

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: 110523
Discharge Received: 			   Date: 110615   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: HHC, 307th Bde Spt Bn, 1BCT, 82nd Airborne Division, Fort Bragg, NC 

Time Lost: AWOL (101217-110302) for 76 days, unknown mode of return

Article 15s (Charges/Dates/Punishment): 101119, failed to obey a lawful general order x 2, by wrongfully possessing Salvia Divinorum,"spice" (101110) and wrongfully possessing a firearm in the barracks (101110), reduced to E-1; forfeiture of $669 x 2 months (suspended); 45-day extra duty and restriction, (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  24
Current ENL Date: 100304    Current ENL Term: 04 Years  ?????
Current ENL Service: 	01 Yrs, 00 Mos, 17 Days ?????
Total Service:  		03 Yrs, 00 Mos, 24 Days ?????
Previous Discharges: 	RA (080306-100303) / HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 92G (Food Service Operation)   GT: 97   EDU: GED   Overseas: SWA   Combat: Iraq (090818-100730)
Decorations/Awards: ARCOM; ICM-CS; GWOTSM; ASR; MUC

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 29 April 2011, the applicant was charged with AWOL (101217-110303).  
       
       On 13 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 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 commander recommended approval of an under other than honorable conditions discharge.  
       
       On 1 June 2011, the separation authority approved the Chapter 10 request and directed an under other than honorable conditions discharge.  The applicant was reduced to the lowest enlisted rank.
       
       The applicant's record contains an MP Report for weapons violation and possession of spice (101110).

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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 document 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. 
       
       Furthermore, the analyst noted the applicant's issue and determined that the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review.  The record of evidence does not demonstrate that he sought relief through his command or 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.  Moreover, there is a presumption of regularity in the conduct of governmental affairs.  This presumption is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted.  The applicant’s statements alone do not overcome the presumption of government regularity in this case and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge.  
       
       The analyst noted the applicant's issues 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.
       
	Furthermore, the record does not support the issue that the applicant suffers from Post Traumatic Stress Disorder and the applicant submitted no evidence to support that the discharge was the result of any medical condition. 
       
       Further, the analyst noted the applicant's issue about not receiving his per diem pay for his tour; however, that request for resolving his pay does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization. 
       
       The analyst found no evidence of arbitrary or capricious actions by the command.  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.  
       
       Therefore, the analyst concluded the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief.
       
       The applicant did not submit in further evidence in support of the personal appearance hearing.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 	Date: 8 April 2013         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 149, dated 9 August 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 Discussion and Recommendation which follows, the Board determined the discharge to be 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: 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




JOSEPH M. BYERS
Lieutenant Colonel, U. S. Army
Secretary Recorder










Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTH - Under Other Than Honorable 
												Conditions 

ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20120016589
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