IN THE CASE OF:  	
      
      BOARD DATE:  	29 May 2013

      CASE NUMBER:  	AR20120021287
___________________________________________________________________________

Board Determination and Directed Action

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 characterization of service was too harsh based on the overall length and quality of the applicant's service, to include his combat service, and as a result it is inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  The Board further determined the reason for discharge was both proper and equitable and voted not to change it.  This action entails restoration of grade to E-5.




      
      
      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 to upgrade the characterization of his service from under other than honorable to fully honorable.

2.  The counsel on the behalf of the applicant states, in effect, that the request for an upgrade is based upon legal error, and evidence of extenuation and mitigation.  The counsel presented, in effect, the following issues in support of the request:  The discharge is improper, because the separation authority considered inaccurate and incomplete information; the applicant had refuted criminal responsibility for his actions in his statement; the request for discharge was made under duress, because of pretrial confinement conditions and his mental health conditions; the command erroneously denied a medical examination prior to his discharge; his unlawful pretrial restraint render’s his discharge legally objectionable; and the characterization of service is inequitable based on the surrounding circumstances and his post-discharge activity.  The counsel also requested corrections and additions to the applicant’s DD Form 214.  (Note the counsel presented a nine-page statement with the above captioned issues.)
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	15 November 2012
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	7 June 2005
	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:	A Btry, 2-43 ADA Bn, 108th ADA Bde, Fort Bliss, TX
	f.	Current Enlistment Date/Term:	9 May 2001, 4 years
	g.	Current Enlistment Service:	3 years, 11 months, 1 day 
	h.	Total Service:	3 years, 11 months, 1 day 
	i.	Time Lost:	58 days 
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-5
	l.	Military Occupational Specialty:	25F10, Network Switching Systems Operator
	m.	GT Score:	116
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA (per AAM, ARCOM)
	p.	Combat Service:	Iraq (030319-030601) per ARCOM certificate
	q.	Decorations/Awards:	AGCM; NDSM; GWOTSM; ASR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	None
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 9 May 2001 for a period of 4 years.  He was 23 years old at the time of entry and completed a year in college.  His record does not reflect having served any overseas assignment; however, throughout his application and submitted documents, references were made of his service in Kuwait and Iraq, but the exact dates are not in file.  His record documents no acts of valor or significant achievement; however, the evidence he submitted shows he received an ARCOM and an AAM.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 16 May 2005, the applicant was charged with the following offenses:

      a. Article 86, UCMJ, failed to go to his appointed place of duty at the time prescribed x 3 (050127, 050204, 050411)
      b. Article 87, through design, missed movement of unity (050311) 
      c. Article 89, behaved with disrespect toward his superior commissioned officer  (050429)
      d. Article 91, disrespectful in language toward an NCO (041215)
      e. Article 92, disobeyed a lawful order (041215)
      f. Article 115, on divers occasions (050109-050311), for the purpose of avoiding service, feign mental illness
      g. Article 114, communicated a threat to LTC E (050429)

2.  On 24 May 2005, 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 and provided a statement on his behalf.  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 submitted a statement on his own behalf.  There is no record of unit commander and intermediate commanders would have recommended approval of an under other than honorable conditions discharge.  

3.  On 26 May 2005, 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 reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 7 June 2005, with a characterization of service of under other than honorable conditions.

5.  The applicant’s DD Form 214 indicates 58 days of time lost for military pretrial confinement from 29 March 2005 through 25 May 2005; however, his record reflects he was confined, effective 29 April 2005 through 26 May 2005; therefore, a total of 28 days of time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Orders awarding AGCM (1st Award) for period (010509-040508), dated 30 November 2004; an ARCOM certificate, dated 30 April 2003; and an AAM certificate, dated 29 April 2003.


EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided with his application, his counsel-authored petition; promotion orders; PLDC AER; OIF certificate of achievement; character reference letter, dated 1 June 2005; AGCM Orders, dated 30 November 2004; ARCOM and AAM certificates; certificates of training x 3; Drivers Badge award orders; applicant’s self-authored statement; medical records, dated 9 February through 13 March 2005; confinement order, dated 29 April 2005; applicant’s unsigned letter of apology, dated 24 May 2005; memorandum, dated 26 May 2005, subject: Order Not to Reenter or be Found Within the Limits of the U.S. Military Reservation; discharge orders; ERB; applicant’s statement submitted with Chapter 10 request, dated 24 May 2005; defense counsel’s supporting statement; memorandum, dated 26 May 2005, approving Chapter 10 request; employment performance evaluation, dated 7 March 2010 with letter, dated 7 April 2009, and character reference statement; congressional correspondence, dated 3 June 2005; certificates of achievement x 2 relating to employment; DD Form 214 for service under current review; attorney correspondences regarding the applicant’s application. 

POST-SERVICE ACTIVITY: 

The applicant submitted evidence that shows he is employed as a state correctional officer. 

REGULATORY AUTHORITY:

1.  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.  

2.  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.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  

2.  After examining the applicant’s record of service, his military records, the documents and the issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's discharge to general, under honorable conditions for the following reasons:  

	a. Length and quality of service:  The applicant served 3 years, 11 months, and 1 day of a 4-year enlistment; thus the preponderance of his service was honorable.

	b. The record confirms the applicant received several outstanding recognitions, specifically an ARCOM and an AAM for his tour in Iraq and Kuwait, respectively, as well as, several certificates for his outstanding performances resulting in an early promotion to Sergeant E-5.  

	c. The applicant’s post service accomplishments as provided in several documents with his application indicate he is employed as a state correctional officer.  His performance evaluations reflect positive work ethic and a productive member; characters references depict his employment recognition as being a member of a high-caliber team and an extremely valuable employee; and his certificates of achievement show he successfully completed trainings.  

	d. The Army Discharge Review Board is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings.  The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.  

3.  The counsel on behalf of the applicant primarily contends the applicant’s discharge was legally improper, because the separation authority considered inaccurate and incomplete information in granting the discharge under other than honorable conditions.  Specifically, the bar letter stipulating the bar action was supported by serious incidents inapplicable to the applicant’s case and the approval of the applicant’s request for discharge in lieu of trial by court-martial with a UOTH were signed on the same date, 26 May 2005.  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.  Although the offense cited in the bar letter is considered an error, the chapter 10 packet would have been considered first and separately and on its own merits with no regard to the bar letter.  

4.  The applicant’s additional contentions of having made his request to be separated in lieu of trial by court-martial under duress, unlawful pretrial restraint, and being denied a medical examination were also presented without any corroborating evidence.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issues.  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, through his counsel, alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.

5.  The applicant’s requested corrections and additions to his DD Form 214 do 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.

6.  In view of the foregoing and after full consideration of all of the applicant’s faithful and honorable service, as well as, the record of misconduct, it is recommended the Board grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.   The evidence in this case supports a conclusion that the applicant’s characterization of service may now be too harsh and as a result inequitable.  However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: 	Records Review	    Date:  29 May 2013       Location: Washington, DC

Did the Applicant Testify?  No 

Counsel:  Yes

Witnesses/Observers:  NA 

Board Vote:
Character Change:  3	No Change:  2
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:			Yes
Change Characterization to:		General, Under Honorable Conditions
Change Reason to:				No Change
Change Authority for Separation:		No Change
Change RE Code to:			No Change
Grade Restoration to:			E5
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)		AR20120021287



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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