IN THE CASE OF:  

      BOARD DATE:  	12 August 2013

      CASE NUMBER:  	AR20130002100
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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 general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, his going AWOL was the result of being young and peer pressure.  He contends he's now married with a special needs child, been employed for over three years, and will be graduating May 2013 from college with plans to pursue a degree in chemistry and biology with a minor in physics.  In his desire to attend medical school, he would like an upgrade of his characterization, as it would help pass several barriers as he grows in his education and his field of study.  He also contends he is older, wiser and trying to make a difference.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			31 January 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				12 August 1998
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, Chapter 10 								KFS, RE-3
e. Unit of assignment:				HHT, 2d Bn, 11th ACR, Fort Irwin, CA
f. Current Enlistment Date/Term:		20 January 1994, 6 years
g. Current Enlistment Service:		4 years, 1 month, 28 days
h. Total Service:				4 years, 1 month, 28 days
i. Time Lost:					145 days 
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		45T10, BFVC Turret Mechanic
m. GT Score:					NIF
n. Education:					HS Graduate
o. Overseas Service:				Korea
p. Combat Service:				None
q. Decorations/Awards:			AGCM, NDSM, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				Yes, 10 April 2006, granted an GD
SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 20 January 1994 for a period of 6 years.  He was 21 years old at the time of entry and a high school graduate.  He served in Korea.  He earned an AGCM and completed 4 Years, 1 month, and 28 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      2 March 1998, the applicant was charged with going AWOL (971004-980226).

2.  On 2 March 1998, 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 submitted a statement on his own behalf.  The unit commander recommended approval of an UOTHC discharge.  

3.  On 17 June 1998, the separation authority approved the Chapter 10 request and directed the applicant's 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 12 August 1998, with a characterization of service of UOTHC.  The applicant’s record of service indicates 145 days of time lost for being AWOL from 4 October 1997 until his voluntary return on 26 February 1998.  The applicant's total active service includes 163 days of excess leave from 3 March 1998 to 12 August 1998.

5.  On 10 April 2006, the Army Discharge Review Board reviewed the applicant's case and determined relief was warrant.  The Board determined the characterization of service was too hash based on the applicant's overall length and quality of service.  Therefore the Board directed the applicant's characterization of service be upgraded to general, under honorable conditions and his grade be restored to SPC/E-4.

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 submitted a self-authored statement, a letter of support, and a copy of his updated DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

The applicant contends he is currently employed as a state tested nursing assistance where he has been working for over four years.  He graduated Cum Laude with an associate of science and is a member of Phi Theta Kappa Collegiate Honors Society.  He currently has plans of attaining his PhD in Microbiology, Immunology and Infectious Diseases.



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 issues and documents 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 applicant contends that he has been employed as a state tested nursing assistant for over four years, that he has been attending college while working part time in a long term care facility and full time as a home health aide, graduated Cum Laude with an associate of science degree.  The applicant’s post-service accomplishments have been noted as outlined on the application.  Furthermore, the evidence of record shows the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with an UOTHC discharge which was later upgrade to a general, under honorable conditions discharge by the Army Discharge Review Board.  It appears the applicant’s generally good record of service was the basis for his receiving a GD instead of the normal UOTHC discharge.  

4.  Further, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings.  The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

5.  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: Personal Appearance 	     Date: 12 August 2013    Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel: No

Witnesses/Observers: No 

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)		AR20130002100



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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