IN THE CASE OF:  	Mr. 

      BOARD DATE:  	26 April 2013

      CASE NUMBER:  	AR20130000197
___________________________________________________________________________

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, that he was in the process of receiving a medical discharge and had been evaluated long before he was placed with the rear detachment.  He was sent to mental health by his chain of command while he was serving in Kuwait where he was evaluated in 2002.  He has also been on medication since 2002.  His paperwork was changed from 2002 to read 2003; and his paperwork was changed from a medical discharge evaluation to a misconduct discharge evaluation. 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		26 December 2012			
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			30 June 2003	
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:			Headquarters and Headquarters Company, 
					1st Battalion, 41st Infantry, Fort Riley, Kansas			
f. Current Enlistment Date/Term:	16 August 2000, 5 years
g. Current Enlistment Service:	2 years, 9 months, 7 days
h. Total Service:			2 years, 9 months, 7 days
i. Time Lost:				Confinement for 35 days (021210 - 030115) and 							AWOL for 1 day (030319 - 030319) for a total of 36 							days. 
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	77F10, Petroleum Supply Specialist
m. GT Score:				105
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No



SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 16 August 2000, for a period of 5 years.  He was      17 years old at the time of entry, a high school graduate, and completed 2 years, 9 months, and 7 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on    12 June 2003, the applicant was charged with the following offenses:

      a. AWOL (030319 - 030320)
      b. without authority, failed to go at the time prescribed to his appointed place of duty x3 		    (030304), (030305), (030306) 
      c. derelict in the performance of his duties in that he willfully failed to notify the gate 	  	    guards that a female was hidden in the trunk of his vehicle when he gained access to 	  	    the installation through a manned control point (030507)
      d. unlawfully consumed an alcoholic beverage while under 21 years of age (030507)
  	e. failed to obey a lawful general order by wrongfully failing to provide proof of 	 	 	    automobile insurance (030507)

2.  On 17 June 2003, 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.

3.  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 on his own behalf.  

4.  On 26 June 2003, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued a UOTHC Discharge Certificate.  

5.  On 30 June 2003, the applicant was discharged.  The DD Form 214 (Report of Separation from Active Duty) he was issued, shows he completed 2 years, 9 months, and 7 days of creditable active military service and accrued 35 days of time lost due to confinement,          from 10 December 2002 - 15 January 2003 and 1 day of lost time for being AWOL on            19 March 2003.  Additionally, the applicant’s record indicates a period of 2 days of lost time from 12 June 2001 through 14 June 2001 that is not reflected on the applicant’s DD Form 214. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 15 May 2002, failed to go at the time prescribed to his appointed place of duty x3, (020114), (020212), and (020223).  The punishment consisted of reduction to the grade of E-2, forfeiture of $310, suspended, to be automatically remitted if not vacated before (020809), restriction and extra duty for 14 days, (CG).

2.  Four negative counseling statements, dated between 20 March 2003 and 7 May 2003, for missing formations, driving without driver’s license, driving without proof of insurance, driving without a registration, and a minor in possession of alcohol. 
      
3.  MP Report number 00963-2003-MPC025, that indicates the applicant was the subject of an investigation for carrying a concealed weapon, failing to register a weapon, driving with no valid driver’s license in his possession, driving with no registration in his possession, minor in possession of alcohol, driving with no insurance in his possession, criminal trespass, and conspiracy. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 with a self authored statement, various medical records and a DD Form 214. 

POST-SERVICE ACTIVITY: 

None were provided with the application.  

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 his characterization and a change to the reentry code 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 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 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 he should have been medically discharged; however, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  Additionally, 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.    

5.  The applicant contends that he served overseas in Kuwait.  However, the applicant’s requested change to the DD Form 214 does 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.  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:  26 April 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:	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)		AR20130000197



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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