IN THE CASE OF:  	

      BOARD DATE:  	24 July 2013

      CASE NUMBER:  	AR20130001666
___________________________________________________________________________

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 is requesting an upgrade in his characterization of service for the purpose of being able to qualify for his education benefits and would also help him to provide for his family.  He contends he is trying to go back to school.  He also contends he went AWOL in an attempt to save his marriage.  His wife was threatening to take his kids and move away from him. 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			22 January 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				14 January 2002
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, Chapter 10 								KFS, RE-4
e. Unit of assignment:				C Co, 1st Bn, 12th Cav, 2nd Bde, Fort Hood 							TX
f. Current Enlistment Date/Term:		5 August 1999, 3 years
g. Current Enlistment Service:		2 years, 00 months, 1 day (The DD Form 214 								under review indicates the applicant's date 								entered AD as being "970805," however; the 								enlistment contract found in the record shows 								the dated should be "990805.")
h. Total Service:				10 years, 1 day
i. Time Lost:					162 days 
j. Previous Discharges:			ARNG-910613-910827/NA											IADT-910828-920118/UNC										ARNG-920119-940123/NA											ARNG (AGR)-940124-960405/HD									ARNG-960406-961129/GD										USARACG-961130-980511/NA										USAR-980512-990612/NIF										      (Break-in-Service)
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		92Y10, Unit Supply Specialist
m. GT Score:					NIF
n. Education:					GED
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			AAM-2, NDSM, NPDR, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			None
u. Prior Board Review:				No
SUMMARY OF SERVICE:		

After serving in the Army National Guard for 8 years the applicant enlisted in the Regular Army on 5 August 1999, for a period of 3 years.  At the time of enlistment he was 29 years old.  His record shows he has earned two AAM's which he received during prior periods of service.  He has completed 10 years and 1 day of military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on      29 January 2001, the applicant was charged with going AWOL (000814-010123).

2.  On 29 January 2001, 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 unit commander recommended approval of an UOTHC discharge.  

3.  On 13 December 2001, 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.  The applicant was discharged from the Army on 14 January 2002, with a characterization of service of under other than honorable conditions.  The applicant’s record of service indicates he had 162 days of time lost for being AWOL from 14 August 2000 until his voluntary return on                 23 January 2001.  The applicant's total active service includes 350 days of excess leave from 30 January 2001 to 14 January 2002.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The record contains a NCO Evaluation Reports (NCOER), with a rating period of 9908 through 0006 with an overall rating of marginal.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided no additional documents.



POST-SERVICE ACTIVITY: 

None provide 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 no acts of significant achievement or valor during the period of service under review 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 went AWOL in an attempt to save his marriage.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  

5.  The applicant contends that an upgrade of his discharge would allow educational benefits through the use of the GI Bill and would also help him to provide for his family.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.  Additionally, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

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 July 2013   	Location: Washington, DC

Did the Applicant Testify?  No 

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)		AR20130001666



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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