IN THE CASE OF:  	

      BOARD DATE:  	2 August 2013

      CASE NUMBER:  	AR20130003208
___________________________________________________________________________

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 to upgrade his characterization of service from under other than honorable to fully honorable.

2.  The applicant states, in effect, his request is due to being offered a medical discharge and was on medical hold.  He was also going through a divorce and child custody battle.  He was not competent at the time.  He had mental health issues since age 13 and is still suffering from them.  When he was at Fort Knox, he was informed he could ask for a medical discharge but he did not, because his wife at the time was pregnant and he was trying to hurry home to her.  He was told that it would take longer to get medically discharged.  Therefore, he is asking the Board to understand and change his discharge.
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	11 February 2013
	b.	Discharge Received:	Under Other than Honorable Conditions
	c.	Date of Discharge:	11 June 2008
	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:	PHO/Echo Co, CRC, Fort Benning, GA
	f.	Current Enlistment Date/Term:	14 October 2004, 545 days, per mobilization orders 
			288-128, dated 14 October 2004
	g.	Current Enlistment Service:	0 years, 7 months, 26 days
	h.	Total Service:	2 years, 1 months, 22 days
	i.	Time Lost:	1,098 days
	j.	Previous Discharges:	ARNG (030418-030818) / NA
			ADT    (030819-040129) / HD
			ARNG (040130-041013) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	74D10, Chemical Operations Specialist
	m.	GT Score:	NIF
	n.	Education:	HS Graduate
	o.	Overseas Service:	NIF
	p.	Combat Service:	NIF
	q.	Decorations/Awards:	NDSM; ASR; AFRM-M
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:		

The applicant enlisted in the Army National Guard on 18 April 2003, for a period of 8 years, and served concurrently upon being mobilized on active duty on 14 October 2004 for 545 days in support of OIF IAW 10 U.S.C. § 12302 and excess leave (creditable for all purposes except pay and allowances for 139 days (080125-080611)).  He was 23 years old at the time of his initial entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 74D10, Chemical Operations Specialist.  His record documents no acts of valor or significant achievement.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 1,098 days of time lost for being AWOL from 29 December 2004 until his apprehension on 1 January 2008, by civil authorities.

2.  On 24 January 2008, a court-martial charge was preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) based on the AWOL offense outlined in the preceding paragraph.  On 24 January 2008, 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 27 May 2008, 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 11 June 2008, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 1 year, 1 month, and 7 days of creditable active military service, and 1 year and 15 days of inactive Reserve service, a total of 2 years, 1 month, and 22 days.  

6.  The applicant’s record of service indicates 1,098 days of time lost for being AWOL from 29 December 2004 until his return on 1 January 2008, upon being apprehended by civil authorities.  



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  DD Form 258, Charge Sheet, with a preferred date 24 January 2008, which indicates the applicant being charged with being AWOL from 29 December 2004 through 1 January 2008. 

2.  DD Form 616, Report of Return of Absentee, dated 2 January 2008, which indicates the applicant was apprehended by civil authorities, and was returned to military control on 2 January 2008.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none.

POST-SERVICE ACTIVITY: 

The applicant provided none.

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 his characterization of service was carefully considered.  However, after examining the applicant’s record of service, the issue 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 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 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 that he was having family issues that ultimately caused him to be discharged.  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.

5.  The applicant contends he should have been medically discharged based on the information he received while on medical hold, but had not requested medical discharge, because of the lengthy process.  He had to return home, because his wife was pregnant.   However, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  Moreover, the fact that the applicant contends he had medical conditions he suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing.  The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels.  Accordingly, his contentions are without merit.

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:  2 August 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)		AR20130003208



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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