IN THE CASE OF:  	

      BOARD DATE:  	3 May 2013

      CASE NUMBER:  	AR20120018338
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony and considering the Discussion and Recommendation which follows, the Board determined the discharge to be proper and equitable and voted to deny relief.



      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT'S REQUEST AND STATEMENT:

1.  The applicant requests his under other than honorable conditions discharge be upgraded to general, under honorable conditions.

2.  The applicant states, in effect, that he deployed to Afghanistan and returned with combat related health issues.  He has been diagnosed with PTSD, chronic back and neck pain.  He was discharged without any benefits and feels he has earned at least a general, under honorable conditions characterization.  He suffers from severe anxiety as a result of being blown up several times by IEDs and needs help.  He did not remember what he did wrong but his company commander told him he was going to be court-martialed.  He was allowed to take a Chapter 10 in order to get out without a criminal record.  
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			26 September 2012
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				23 May 2012
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, AR 635-200 								Chapter 10, KFS, RE-4
e. Unit of assignment:				B Co, 2d Bn, 2d IN Regiment, Fort Knox, KY 	
f. Current Enlistment Date/Term:		1 April 2011, NIF	
g. Current Enlistment Service:		1 year, 1 month 23 days
h. Total Service:				5 Years, 6 month, 4 days
i. Time Lost:					None
j. Previous Discharges:			RA (061120-110331), HD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		11B10, Infantryman
m. GT Score:					92
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Afghanistan (080703-090610)
q. Decorations/Awards:			ARCOM, AGCM, NDSM, ACM-CS, GWOTSM 								ASR, OSR, NATO MDL, CIB
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No
SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 20 November 2006 for a period of 3 years.  He was 19 years old and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman.  The applicant’s DD Form 214 indicates he reenlisted on 1 April 2011; however, the contract is not in the record.  His ERB shows his ETS as 3 August 2014.  The applicant served at Fort Hood, Fort Knox and in Afghanistan for 11 months.  He earned an ARCOM, AGCM, and a CIB.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on      6 January 2012, the applicant was charged with the following offenses:

      Charge I:  Violation of the UCMJ, Article 108.

      Specification 1:  In that the applicant, did, at or near Fort Knox, Kentucky, on or about 16 September 2011, without proper authority, willfully damage a wall within building 2839 by removing a mounted television set, military property of the United States, the amount of said damage being less than $500.00.

      Specification 2:  In that the applicant, did, at or near Fort Knox, Kentucky, on or about 16 September 2011, without proper authority, willfully damage a wall within building 2841 by removing a mounted television set, military property of the United States, the amount of said damage being less than $500.00.

      Charge II: Violation of the UCMJ, Article 121.

      Specification 1:  In that the applicant, did, at or near Fort Knox, Kentucky, on or about 11September 2011, without authority, steal a knife, of a value of less than $500.00, the property of the Army and Air Force Exchange System.

      Specification 2:  In that the applicant, did at or near Fort Knox, Kentucky, on or about 16 September 2011, without authority, steal a television set, military property, of a value of less than $500.00, the property of the 3d Brigade Combat Team, 1st Infantry Division.

      Specification 3:  In that the applicant, did at or near Fort Knox, Kentucky, on or about 16 September 2011, without authority, steal a television set, military property, of a value of less than $500.00, the property of the 3d Brigade Combat Team, 1st Infantry Division.

      Specification 4:  In that the applicant, did at or near Fort Knox, Kentucky, on or about 17 September 2011, without authority, steal an Xbox 360 video game and a pair of khaki pants, of a value of less than $500, the property of the Army and Air Force Exchange System.

      Specification 5:  In that the applicant, did at or near Fort Knox, Kentucky, on or about 16 December 2011, without authority, steal a bottle of body wash, a dose of cough medication, a knife, and a laser pointer, of a value of less than $500, the property of the Army and Air Force Exchange System.

2.  On 26 April 2012, 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.  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 indicated he would submit a statement on his own behalf (NIF).  The unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge.  

3.  On 7 May 2012, the separation authority approved the Chapter 10 request and directed discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 23 May 2012, with a characterization of service of under other than honorable conditions.

5.  The applicant’s record of service does not show any record of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The record contains two Military Police Reports dated 23 September 2011 and 16 December 2011, that indicate the applicant was the subject of investigations related to larceny of AAFES property, larceny of government property, and wrongful damage to government property.  

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant did not provide any supporting documents with his application.

POST-SERVICE ACTIVITY: 

None provided with the application.  

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for 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.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

2.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

3.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  However, after examining the applicant’s military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The applicant’s record confirms he was charged with the commission of several offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  His record documents an ARCOM, AGCM, and CIB awards.  However, it does not support the issuance of an honorable or a general discharge by the separation authority and it does not support an upgrade to a general discharge at this late date. His service was marred by several criminal offenses for which court-martial charges were preferred against him.

4.  The applicant contends that he was diagnosed with PTSD, served in combat and now needs help for his medical conditions as a result of his service.  However, by regulation, an under other than honorable conditions discharge is normally appropriate for a member separated in lieu of trail by court-martial.  Further, the applicant’s service record contains documentation that supports a diagnosis of in service Post-Traumatic Stress Disorder (PTSD); however, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted.  The record shows that 20 January 2010, the applicant underwent a mental status evaluation which indicates he was mentally responsible and was considered capable to stand trial.  It appears the applicant’s chain of command determined that although he was suffering from PTSD, he knew the difference between what was right and wrong.  There are many Soldiers with the same condition of PTSD that completed their service successfully.

5.  Moreover, eligibility for veteran's benefits to include medical and 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.

6.  Therefore, the reason and characterization of service being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:   Records Review   	Date:   3 May 2013		Location: Washington, DC

Did the Applicant Testify?  No 

Counsel:  None

Witnesses/Observers:  NA

Board Vote:
Character Change:  0	No Change:  5
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:			No
Change Characterization to:		No Change
Change Reason to:				No Change
Change Authority for Separation:		No Change
Change RE Code to:			No Change
Grade Restoration to:			NA
Other:						NA















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	UOTHC - Under Other Than                           			               Honorable Conditions



ADRB Case Report and Directive (cont)		AR20120018338

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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