IN THE CASE OF:  	Mr. 

      BOARD DATE:  	24 April 2013

      CASE NUMBER:  	AR20130000195
___________________________________________________________________________

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 served with proud and courage and that at the time of discharge he was diagnosed with Post-Traumatic Stress Disorder.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			26 December 2012
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				1 July 2004
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, 501st FSB, Giessen Germany, APO AE	
f. Current Enlistment Date/Term:		9 October 2002, 3 years
g. Current Enlistment Service:		1 year, 8 months, 23 days
h. Total Service:				1 year, 8 months, 23 days
i. Time Lost:					None
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		63E10, M1 Abrams Tank Sys Mech
m. GT Score:					101
n. Education:					HS Graduate 
o. Overseas Service:				Southwest Asia
p. Combat Service:				Iraq (030511-040627)
q. Decorations/Awards:			NDSM, GWOTEM, GWOTSM, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		

The record shows the applicant enlisted in the Regular Army on 9 October 2002 for a period of 3 years.  He was 32 years old and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 63E10, M1 Abrams Tank System Mechanic.  At the time of his misconduct his was serving a tour of duty in Iraq.  His record documents no acts of valor or significant achievement.  He completed 1 year, 8 months, and 23 days of total service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s record is void of a DD Form 458, Charge Sheet concerning the events which led to the applicant's discharge from the Army.  However, the record show that on        15 June 2004, 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 for violation of Article 91 (Insubordinate Conduct) and Article 134 (Communicating a Threat).  

2.  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 did not submit a statement on his own behalf.  The unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge.  

3.  On 18 June 2004, the Staff Judge Advocate office recommended to the approving authority that the applicant's request for a discharge in lieu of trial by court-martial for two specifications of disrespect towards a noncommissioned officer and one specification of willfully discharging a firearm be approved under the provisions of Chapter 10, AR 635-200 with an other than honorable discharge.

4.  On 18 June 2004, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of UOTH.  The applicant was reduced to the lowest enlisted rank. 

5.  The applicant was discharged from the Army on 1 July 2004, with a characterization of service of under other than honorable conditions.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Memorandum, dated 18 June 2001 from the DA HQS, First Armored Division, Baghdad International Airport Complex, Staff Judge Advocate to the Commander, First Armored Division, Baghdad, Iraq, reference the applicant's request for a discharge in lieu of trial by court-martial for two specifications of disrespect towards a noncommissioned officer, and one specification of willfully discharging a firearm.

2.  There are two negative counseling statements dated 3 May 2004 for insubordinate conduct towards a noncommissioned officer and leaving his appointed place of duty without proper authority.




EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided no additional document with his application.

POST-SERVICE ACTIVITY: 

None were provided by the applicant.

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 Regulation 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

3.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND RECOMMENDATION:

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

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge 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 no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority and it does not support an upgrade to an honorable or a general discharge at this late date.  
4.  The applicant contends that at the time of discharge he had been diagnosed with severe Post-Traumatic Stress Disorder.  However, the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  

5.  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.  

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: 24 April 2013     Location: Washington, DC

Did the Applicant Testify?  NA 

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:	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)		AR20130000195



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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