IN THE CASE OF:  	Mr.

      BOARD DATE:  	3 May 2013

      CASE NUMBER:  	AR20130000118
___________________________________________________________________________

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 was both 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 honorable. 

2.  The applicant states, in effect, he had a drinking problem and could not ask for nor seek any help without being punished.   His first enlistment was Honorable.  He just needed help.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		21 December 2012	
b. Discharge Received:		Under Other Than Honorable Conditions		
c. Date of Discharge:			14 March 2006	
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:			1st Battalion, 7th Air Defense Artillery, Fort Bliss, TX	
f. Current Enlistment Date/Term:	24 May 2004, 4 years
g. Current Enlistment Service:	1 year, 9 months, 21 days
h. Total Service:			4 years, 2 months, 6 days	
i. Time Lost:				None
j. Previous Discharges:		RA 020109 – 040523, HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	74D10, Chemical Operations Specialist
m. GT Score:				97
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Kuwait/Iraq (030304 – 040303)
q. Decorations/Awards:		ARCOM-2, AAM, NDSM, GWOTEXM, GWOTSM, 							ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant reenlisted in the Regular Army on 24 May 2004, for a period of 4 years.  He was      25 years old at the time of reenlistment and a high school graduate.  He served in Kuwait and Iraq.  He earned two ARCOM’s and an AAM and 4 years, 2 months, and 6 days of active duty 
service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes being charged with the following:  

a.  One specification of operating a vehicle while the alcohol concentration in his breath         
     was .087 grams of alcohol per 210 liters of breath as shown by chemical analysis
      
b.  Three specifications of wrongfully using marijuana (050925 - 051025),            
     (051101 - 051201), and (051203 - 060103)

2. On 13 February 2006 , court-martial charges was preferred against the applicant for violating Article 111 and Article 112a of the Uniform Code of Military Justice (UCMJ) based on the offenses outlined in the preceding paragraph.  

3.  On 16 February 2006, 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 did not submit a statement in his own behalf.  

5.  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.  The applicant was separated on 14 March 2006, under Army Regulation 635-200, Chapter 10, with a under other than honorable conditions discharge, an SPD code of KFS, and an RE code of 4.  

7.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.  




               
EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Three negative counseling statements dated between 9 April 2005 and 21 May 2005, for receiving a no contact order, allegations of assault, breaking restriction, disobeying a lawful order, and losing his military ID card.

2.  DA Form 458, Charge Sheet, dated 13 February 2006, and a Court-Martial Charges Transmittal Form.
      

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided a DD Form 293, ERB, orders 069-0003, and a DD Form 214.

POST-SERVICE ACTIVITY: 

None were 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 he had a drinking problem and could not seek help without being punished; however, AR 600-85, paragraph 3-8 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance.  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   The character of the applicant’s discharge is commensurate with his overall service record.  

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:  3 May 2013        Location: Washington, DC

Did the Applicant Testify?  N/A 

Counsel: None

Witnesses/Observers: N/A 

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:	N/A
Change RE Code to:		N/A
Grade Restoration to:		N/A
Other:					N/A



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)		AR20130000118



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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