IN THE CASE OF:  	

      BOARD DATE:  	22 May 2013

      CASE NUMBER:  	AR20120022382
___________________________________________________________________________

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 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 feels the length of his honorable service outweighs the adverse actions that were taken against him and that caused his discharge from the Army.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			4 December 2012
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				6 August 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:				E Troop, 2d Sqdn, 11th ACR, Fort Irwin, CA	
f. Current Enlistment Date/Term:		9 February 2010, 5 years
g. Current Enlistment Service:		1 year, 11 months, 21 days
h. Total Service:				3 years, 5 months, 0 days
i. Time Lost:					194 days 
j. Previous Discharges:			RA (080828-100208)/HD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		11B10, Infantryman
m. GT Score:					NIF
n. Education:					HS Equivalency
o. Overseas Service:				SWA
p. Combat Service:				Afghanistan (090715-100621)
q. Decorations/Awards:			AGCM, NDSM, ACM-2, GWOTSM, NPDR								ASR, OSR, NATO MDL
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			None
u. Prior Board Review:				No
SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 28 August 2008 and on 9 February 2010, he reenlisted for a period of 5 years.  He was 19 years old and had a high school equivalency.  His record indicates he served for 1 year, 11 months, and 21 days of a 5-year reenlistment which included a combat tour.  The record documents no acts of valor or significant achievement except for the AGCM award. 



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 194 days of time lost for being AWOL on two occasions:  

a. between 31 October 2011 and 10 November 2011, he returned to his unit on his own after being AWOL for 11 days
b. between 6 December 2011 and 4 June 2012, he was AWOL for 183 days, the mode of return is not in the record

2. On 27 June 2012, court-martial charges was preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) specifically for being AWOL between 6 December 2011 and 4 June 2012; and for breaking restriction on 6 December 2011.

3.  On 9 July 2012, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and of the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

4.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge.  He also confirmed his understanding that if his request for discharge was approved, he could receive an under other than honorable conditions discharge.  He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.  The applicant confirmed he had no desire to perform further military service and indicated he would submit a statement in his own behalf (NIF).  

5. On 26 July 2012, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued an under other than honorable conditions discharge certificate.  

6.  On 6 August 2012, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed a total of 3 years and 5 months of creditable active military service and accrued 194 days of time lost due to being AWOL.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There are no negative counseling’s or actions under the Uniform Code of Military Justice.

2.  The record contains an Academic Evaluation Report (AER) for the period of 1 April through 21 April 2011 which indicates he achieved the Warrior Leaders’ Course standards.
 
EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a copy of his DD Form 214.  

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 his discharge was carefully considered.  However, after examining the applicant’s record of service, the issue and document submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The evidence of record confirms the applicant was charged with the commission of 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 applicant contends that the length of his honorable service outweighs his adverse actions that caused his discharge from the Army.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the court-martial charges that were filed against him.  The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  

4.  Therefore, the reason for the discharge 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:   22 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)		AR20120022382

Page 5 of 5 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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