IN THE CASE OF:  

      BOARD DATE:  	22 May 2013

      CASE NUMBER:  	AR20130001179
___________________________________________________________________________

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 an upgrade of his under other than honorable conditions to general, under honorable conditions or honorable.

2.  The applicant states, in effect, that he had just returned from Iraq and was having problems when he tested positive for THC.  He was not in the right state of mind; additionally, he had hurt his hand while he was in Iraq and was suffering from a severe hematoma.  His mother had spent all of his money while he was deployed and consequently his car was repossessed.  As a result he was in Germany with no money.  He does not agree with the discharge he received.  He had been told by his captain that he would only receive an Article 15 which is a more reasonable punishment than getting kicked out.   
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		14 January 2013	
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			26 November 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:			811th OD Co, Fort Lee, VA			
f. Current Enlistment Date/Term:	OAD, 7 February 2003, 365 days
g. Current Enlistment Service:	0 years, 9 months, 20 days
h. Total Service:			1 year, 6 months, 11 days
i. Time Lost:				None
j. Previous Discharges:		USAR 020516-031126, NIF (Concurrent Service)
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	63S10, Heavy Wheeled Vehicle Mechanic
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (030207 - 031006)  
q. Decorations/Awards:		NIF
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		No
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Army Reserve on 16 May 2002 for a period of 8 years.  He was 18 years old at the time of entry and a high school graduate.  On 7 February 2003, the applicant was ordered to active duty in support of Operation Enduring Freedom for a period of 365 days.  A review of the applicant’s Integrated Web Services (IWS) Record indicates he served in Iraq and completed a total of 1 year, 6 months and 11 days of active and inactive service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  

2.  The DD Form 214 indicates that on 26 November 2003, the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the Service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  Further, the DD Form 214 shows a Separation Code of KFS i.e., in lieu of trial by court-martial) with a reentry eligibility (RE) code of 4.

3.  The applicant’s available record does not show any evidence of actions under the UCMJ or unauthorized absences or time lost.

4.  On 20 November 2003, Department of the Army US Army Combined Arms Support Command, Fort Lee, VA, Orders Number 324-0502, discharged the applicant from the Army effective 21 November 2003.  The discharge order and DD Form 214 reflect a discrepancy of 5 days concerning the discharge date; however, IWS reflects the date of the DD Form 214 as being the correct date of discharge. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

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

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided a DD Form 293, orders 324-0502, and a DD Form 214.

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 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.  However, after examining the applicant’s military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge.  Barring evidence to the contrary, it appears all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant's contentions were carefully considered.  However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service.  Moreover, there is a presumption of regularity in the conduct of governmental affairs.  This presumption is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted.  The applicant’s statements alone do not overcome the presumption of government regularity in this case and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge.  

4.  If the applicant desires a personal appearance, it is his responsibility to meet the burden of proof since the evidence is not available in the official record.  The applicant will need to provide the appropriate documents or other evidence (i.e., discharge packet) sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.

5.  Therefore, based on the available evidence and the presumption of government regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus 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: NA

Witnesses/Observers: None 

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:	NA
Change RE Code to:		NA
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)		AR20130001179



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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