IN THE CASE OF:  	

      BOARD DATE:  	3 July 2013

      CASE NUMBER:  	AR20130001647
___________________________________________________________________________

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 general, under honorable conditions.  

2.  The applicant states, in effect, that he was missed diagnosed by mental health while in the Army.  He contends he suffered from severe depression and bipolar and did not know how to handle it, resulting in his misconduct.  He also contends his misconduct started after his return from Iraq.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			22 January 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				10 February 2011
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:				2nd Bn, 1st Avn Regt, CAB (R)(P), Fort Riley 							KS	
f. Current Enlistment Date/Term:		8 November 2007, 3 years
g. Current Enlistment Service:		3 years, 3 months, 3 days
h. Total Service:				6 years, 6 months, 1 day
i. Time Lost:					None
j. Previous Discharges:			RA-040810-071107/HD
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		92A10, Automated Logistical Specialist
m. GT Score:					97
n. Education:					High School Graduate
o. Overseas Service:				Germany, Southwest Asia
p. Combat Service:				Iraq (070906-081203)
q. Decorations/Awards:			ARCOM, AGCM, NDSM, ICM-CS, GWOTSM 								ASR, OSR-2
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 10 August 2004, for a period of 4 years.  He reenlisted on 8 November 2007 for a period of 3 years.  He was 23 years old at the time of reenlistment and a high school graduate.  He served in Germany and did a tour of combat in Iraq.  He achieved the rank of SGT/E-5, and earned an ARCOM and the AGCM.  He completed 6 years, 6 months, and 1 day of total active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on    17 December 2010, the applicant was charged with the following offenses:

      a. on diverse occasions failed to go at the time prescribed to his appointed place of duty between (100728 and 101217)
      
      b. on diverse occasions failed to go at the time prescribed to his appointed place of duty between (100728 and 100819)
      
      c. disobeyed a lawful command from a commissioned officer (100723)
      
      d. disobeyed a lawful command from a commissioned officer between (101013 and 101113)
      
      e. the charge sheet makes reference to a continuation sheet; however, a continuation sheet was not found in the available records.
      
2.  On 7 January 2011, 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.  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 applicant's chain of command recommended approval of an UOTHC discharge.  

3.  On 12 January 2011, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of UOTHC.  The applicant was reduced to the lowest enlisted rank. 
      
4.  On 10 February 2011, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 6 years, 6 months and 1 day of creditable active military service and accrued no lost time.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 28 July 2010, for wrongful use of morphine between (100117 and 100120), stealing from another Soldier, to wit, two money orders (100120), and failing to go at the time prescribed to his appointed place of duty x 2 (100421 and 100520).  The punishment consisted of reduction to the grade of E-4, forfeiture of $1,099.00 pay per month for two months, extra duty for 45 days, restriction for 45 days, and oral reprimand (FG).

2.  There are twenty negative counseling statements dated between 23 April 2010 and             5 November 2010, for numerous instances of violation of a no contact order, violation of restrictions set forth in the proceedings under Article 15, reporting late for extra duty, missing formation, missing a scheduled appointment, missing a room inspection, communicating a threat, suspended license, and disobeying a lawful order.
      
3.  Three MP Reports dated, 26 November 2010, that indicate the applicant was the subject of an investigation for making a false official statement, obstruction of justice, and larceny of private property (medication).

4.  Mental Health Evaluation, dated 15 December 2010, which diagnosed the applicant as suffering from depression.  

5.  Two NCOER's covering the period of 1 December 2008 to 28 July 2010.  The applicant was rated overall as fully capable.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided no additional documents.

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 characterization 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 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 the discrediting entries constituted a departure from the standards of conduct expected of Soldiers in the Army 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 was missed diagnosed by mental health and that he suffers from severe depression and bipolar.  The applicant’s service record contains documentation that supports a diagnosis of in service depression; however, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted.  The record shows that on 15 December 2010, the applicant underwent a mental status evaluation which indicates he had the mental capacity to participate in the proceedings and was mentally responsible/able to distinguish between right and wrong.  It appears the applicant’s chain of command determined that although he was suffering from depression, he knew the difference between what was right and wrong as indicated by the mental status evaluation.  Further, there are many Soldiers with the same condition that completed their service successfully. 

5.  Furthermore, the service record contains no evidence that the applicant suffers from being bipolar and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.

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: 3 July 2013   	Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: 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:		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)		AR20130001647



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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