IN THE CASE OF:  	Mr. 

      BOARD DATE:  	19 June 2013

      CASE NUMBER:  	AR20130002092
___________________________________________________________________________

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 an honorable discharge.  

2.  The applicant states, in effect, the reasoning behind his discharge was unjust under the circumstances.  Upon returning from Iraq he was having severe problems with PTSD and depression and essentially received no help from his unit.  After a period of getting no help from his unit, he felt he had no choice but to take matters into his own hands and made the horrible decision to go AWOL.  After six months of being AWOL he turned himself into his unit.  He was offered no help, but was bullied on a daily basis by his chain of command.  He received a Chapter 10 discharge rather than receiving a court martial.  Since being discharged, he has been unable to keep and maintain a job, and struggles daily with severe PTSD and depression.  He had been going to the VA hospital for the last year getting help with his PTSD only to be told on 23 January 2013, he was ineligible for VA benefits because of his other than honorable discharge.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			25 January 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				23 December 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:				C Co, 1-15 Inf, 3d Unit of Action, 3d Inf, Div, Ft. 						Benning, GA 		
f. Current Enlistment Date/Term:		20 February 2003, 3 years
g. Current Enlistment Service:		1 years, 4 months, 3 days
h. Total Service:				3 years, 4 months, 17 days
i. Time Lost:					181 days 
j. Previous Discharges:			RA(010206-030219)/HD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		19K10, M1 Armor Crewman
m. GT Score:					89
n. Education:					HS Graduate
o. Overseas Service:				SWA, Kosovo (011025-011025)
p. Combat Service:				Iraq (030106-030417)
q. Decorations/Awards:			ARCOM, AAM, NDSM, GWOTSM, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			Yes
u. Prior Board Review:				None

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 6 February 2001 for a period of 3 years.  He was 19 years old at the time of entry and a high school graduate.  He reenlisted on 20 February 2003, and served in Iraq, and Ft. Benning, Georgia.  He earned an ARCOM, AAM and completed 3 years, 4 months, and 17 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 181 days of time lost for being AWOL between 22 March 2004, until his return to duty on 22 September 2004, which was not noted on the DD Form 214, but was validated on the DA Form 4187.

2.  On 1 April 2004, a court-martial charge was preferred against the applicant for violating Article 85 of the Uniform Code of Military Justice (UCMJ) based on the AWOL offense outlined in the preceding paragraph.  On 8 November 2004, 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 in his own behalf.  

4.  On 24 November 2004, 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 23 December 2004, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 3 years, 10 months, and 18 days of creditable active military service; however, 181 days of AWOL from 22 March 2004 to 22 September 2004, was not annotated as lost time in block 29.  The net active service this period should be:  1 Year, 4 months, 3 days.   




EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Two negative counseling statements dated 22 September 2004, for being AWOL, and Missing Movement.

2.  DD form 458 (Charge Sheet), dated 1 April 2004, for the charge of AWOL.

3.  Two DA Form 4187 (Personnel Action), recording the applicant's date of AWOL, date of DFR, and date returned to the unit.    

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, dated 23 January 2013; a copy of a DD Form 293, dated 23 January 2013; a copy of DD Form 214; and a statement of support from a Veterans Center Clinical Psychologist, dated 6 October 2011.  

POST-SERVICE ACTIVITY: 

None 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.  

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4.

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 record of service, his military records, the documents and the issues 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 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 UOTHC 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 at the time of discharge and it does not support an upgrade to an honorable or a general discharge at this late date.  

4.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  

5.  The applicant contends his discharge was unjust under the circumstances because he was having severe problems with PTSD, and depression, which contributed to his misconduct.  While the applicant may believe his view of his personal problems was the underlying cause of his misconduct, the record of evidence does not demonstrate that he sought relief from his depression through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  

6.  Furthermore, the record does not support the issue that the applicant suffered from PTSD and the applicant submitted no evidence to support that the discharge was the result of any medical condition.  The analyst noted the PTSD diagnosis from the Veterans Center Psychologist; however, in review of the applicant's entire service record, the analyst found that this medical condition did not overcome the reason for discharge and characterization of service granted.

7.  The applicant claims he was bullied and was offered no help from his chain of command.  The analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

8.  Therefore, the reason for discharge and the 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:  19 June 2013     Location:  Washington, D.C. 

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA???? 

Board Vote:
Character Change:  1	No Change:  4
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)		AR20130002092



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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