IN THE CASE OF:  	Mr. 

      BOARD DATE:  	31 May 2013

      CASE NUMBER:  	AR20130003783
___________________________________________________________________________

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 to be 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 has been in no trouble since his discharge.  His chain of command put the wrong dates towards his bad time which resulted in his wrongful discharge from the Army.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			19 February 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				10 November 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:				513th Trans Co, Joint Base Lewis-McChord, 							WA		
f. Current Enlistment Date/Term:		24 October 2006, 4 years and 20 weeks
g. Current Enlistment Service:		3 years, 11 months, 17 days
h. Total Service:				3 years, 11 months, 17 days
i. Time Lost:					392 days
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		88M10, Motor Transport Operator
m. GT Score:					87
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Iraq (070318-080606)
q. Decorations/Awards:			ARCOM, AGCM, ICM-CS, GWOTSM, ASR, 								OSR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No
SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 24 October 2006, for a period of 4 years and 20 weeks.  He was 21 years old and was a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 88M10, Motor Transport Operator.  His record documents the award of an ARCOM and an AGCM.  He served a combat tour in Iraq between March of 2007 and June 2008.    
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains three DD Forms 458, Charge Sheets which indicate that on 16 February 2011, 19 April 2011, and 6 June 2011, the applicant was charged with the following offenses:

      a. Absent without leave (101020-110120)
      b. conspiracy to commit robbery, robbery, assault, (101107)
      c. wrongful possession of marijuana (101107)
      d. kidnaping and burglary (101107)
      e. breaking and entering a dwelling to commit robbery (101107)

2.  On 29 April 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 and submitted a statement on his behalf.  The unit commander recommended approval of an under other than honorable conditions discharge.  The battalion and brigade commanders recommended disapproval of the Chapter 10 as the applicant was a crucial witness in a government’s case against another Soldier that was pending trial.  If the applicant was to be discharged, they recommended a characterization of under other than honorable conditions.

3.  On 28 June 2011, the separation authority approved the Chapter 10 request and placed an abeyance on the separation until he explicitly authorized such action in writing.  The applicant’s discharge was placed in abeyance in order to ensure his availability as a government witness in the case of another Soldier.

4.  On a subsequent document (undated), the separation authority lifted the abeyance and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.   

5.  The applicant was discharged from the Army on 10 November 2011, with a characterization of service of under other than honorable conditions.

6.  The applicant’s record of service contains several DA Forms 4187, Personnel Action, that show several periods of lost time for a total of 392 days, as follows:

	a.  38 days, AWOL (100116-100222), returned to duty
	b.  138 days,  AWOL (100226-100713), returned to duty
	c.   91 days, AWOL (101020-110118), apprehended
	d.  112 days, military confinement (110208-110530)
	e.  13 days, AWOL (111005-111017), returned to duty


EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

DD Form 458, Charge Sheet and related documents; DA Forms 4187.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 214 and  County record with his application.

POST-SERVICE ACTIVITY: 

The applicant states he has not been in any trouble since he was discharged.

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 discharge was carefully considered.  

2.  The evidence of record confirms the applicant was charged with the commission of offenses 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 very serious offenses and his request 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 discharge at this late date.  

4.  The applicant contends he has not been in any trouble since his discharge and that his chain of command included the wrong dates as bad time which resulted in his wrongful discharge.  The applicant is to be commended for his post-service accomplishments.  Moreover, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged.  In fact, the applicant’s serious criminal offenses and his voluntary request for discharge in lieu of trail by court-martial properly justify the characterization he received.  The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence in support of his request for an upgrade of his discharge.   The applicant’s record contains all the appropriate documents that properly justify and support the inclusion of his lost time as part of the charges for which he was separated from the Army and as stated in his DD Form 214. 

5.  Therefore, 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:  31 May 2013      		Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA 

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:	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)		AR20130003783

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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