IN THE CASE OF:  	Mr. 

      BOARD DATE:  	31 July 2013

      CASE NUMBER:  	AR20130003839
___________________________________________________________________________

Board Determination and Directed Action


After carefully examining the applicant’s record of service during the period of enlistment under review, and notwithstanding the Discussion and Recommendation which follows, the Board determined the overall length and quality of the applicant's service were not sufficient to overcome the seriousness of the misconduct that caused the applicant’s separation from the Army.  Accordingly, the Board determined the reason for discharge was both proper and equitable and voted not to change it.  



      
      
      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 an upgrade of his under other than honorable conditions discharge to general, under honorable conditions. 

2.  The applicant states, in effect, that at the time of his discharge he was offered an opportunity to request a general, under honorable conditions discharge.  He feels that after serving his country in combat his discharge is overly harsh.  He went AWOL and realizes he made a grave error in judgment; however, since his discharge he is finding it extremely difficult to find gainful employment.  He hopes an upgrade would help him find employment so he can fully support his family.  
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		21 February 2013			
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			10 March 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:			B Battery, 1st Battalion, 17th Field artillery Regiment, 						75th Fires Brigade, Fort Sill, OK			
f. Current Enlistment Date/Term:	9 August 2005, 3 years, 22 weeks
g. Current Enlistment Service:	2 years, 6 months, 19 days
h. Total Service:			2 years, 6 months, 19 days
i. Time Lost:				13 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	92G10 Food Service Operations
m. GT Score:				103
n. Education:				HS Graduate
o. Overseas Service:			Korea
p. Combat Service:			NIF
q. Decorations/Awards:		AAM, NDSM, GWOTSM, KDSM, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 9 August 2005 for a period of 3 years and 22 weeks.  He was 21 years old at the time of entry and a high school graduate.  He served in Korea.  He earned an AAM and completed 2 years, 6 months, and 19 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 13 days of time lost for being AWOL from 5 December 2007 until he surrendered to military police on 17 December 2007.

2.  On 16 January 2008, a court-martial charge was preferred against the applicant for violating Article 112a for wrongfully using marijuana (070923-071022), and Article 86 for AWOL (071205-071218) of the Uniform Code of Military Justice (UCMJ).  The unit commander and intermediate senior commanders recommended a court-martial empowered to issue a bad conduct discharge.  

3.  On 14 February 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.

4.  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.  

5.  On 21 February 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.  

6.  On 10 March 2008, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 2 years, 6 months, and 19 days of creditable active military service and accrued 13 days of time lost due to being AWOL.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   There is a positive urinalysis report in the record coded, IR, Inspection Random Sample dated, 22 October 2007, marijuana.


2.  Two negative counseling statements dated 31 October 2007 and 18 December 2007, for use of illegal drugs and failure to be at appointed place of duty.
      
3.  A General Officer Memorandum of Reprimand (GOMOR) determination packet, dated 7 February 2008 that indicates the applicant was reprimanded for driving while intoxicated.  The actual GOMOR is not contained in his record.

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided a DD Form 293 and a DD Form 214.

POST-SERVICE ACTIVITY: 

None were provided by the applicant.

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 the characterization of his discharge was carefully considered.  

2.  After examining the applicant’s record of service, his military records, and the issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's discharge to general, under honorable conditions for the following reasons:  

	a. Length and quality of service:  The applicant served 2 years, 6 moths and 19 days of a 3 year and 22 weeks enlistment, thus the preponderance of his service was honorable.

	b. The record confirms the applicant served in Korea received several awards, which includes an AAM.

	c. The applicant voluntarily turned himself in to military authorities after being absent less than 30 days.
3.  This recommendation is made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct.  The evidence in this case supports a conclusion that the applicant’s characterization of service may now be too harsh and as a result inequitable. 

4. The applicant contends he is having trouble finding employment. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

5.  In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant full relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review        Date:  31 July 2013            Location: Washington, DC

Did the Applicant Testify?  No 

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)		AR20130003839



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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