IN THE CASE OF:  Mr. 

      BOARD DATE:  	9 August 2013

      CASE NUMBER:  	AR20130004340
___________________________________________________________________________

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 that the characterization of service was too harsh based on the length and quality of the applicant’s service to include his combat service and information from prior period of honorable service, as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the Board determined the reason for discharge was both proper and equitable and voted not to change it.  This action entails restoration of grade to PV2/E-2.





      
      
      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 discharge from under other than honorable conditions to honorable.

2.  The applicant states, in effect, he was awarded an honorable discharge for the first half of his time in service from Sept 2005 to July 2008; and he requests a DD Form 214 and a DD Form 215, which shows an honorable discharge has been awarded.  He requests these documents as soon as possible to expedite future employment and also receive unemployment he was not awarded while out of the Army.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		4 March 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			14 July 2010
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:			A Co, 15th Brigade Support Battalion, Fort Hood, TX
f. Current Enlistment Date/Term:	5 July 2007, 6 years
g. Current Enlistment Service:	3 years, 6 days
h. Total Service:			4 years, 10 months, 5 days
i. Time Lost:				4 days
j. Previous Discharges:		RA-(050906-070704)/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	88M10, Motor Transport Operator
m. GT Score:				100
n. Education:				GED Certificate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (061019-080115)
q. Decorations/Awards:		ARCOM, NDSM, ICM-W/3 CS, GWOTSM, ASR 						OSR-2, CAB
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 6 September 2005, for a period of 3 years and 20 weeks.  He was 20 years old at the time of entry with a GED Certificate.  He was trained in and awarded military occupational specialty (MOS) 88M10, Motor Transport Operator.  The record indicates he reenlisted on 5 July 2007 for a period of 6 years and was 22 years old.  His record also shows he served a combat tour and earned several awards including an ARCOM and CAB.  He was serving at Fort Hood, TX, when his discharge was initiated.  He achieved the rank of SPC/E-4.  
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on      12 May 2010, the applicant was charged with the following offenses:

     a.  failing to go at the time prescribed to his appointed place of duty on divers occasions between (100218-100421) and (100218-100421), accountability and work call formations

     b.  failing to go at the time prescribed to his appointed place of duty x 4 (100218, 100303, 100421, and 100430)

     c.  absenting himself from his unit (AWOL) (100503-100506)

     d.  disobeying a lawful command from CPT D between (100219-100419)

2.  On 14 June 2010, 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 behalf.  The unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  The intermediate and senior commanders recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  

3.  On 25 June 2010, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank.

4.  The applicant was discharged from the Army on 14 July 2010, with a characterization of service of under other than honorable conditions under the provisions of Chapter 10,             AR 635-200, by reason of in lieu of trial by court-martial, a Separation Program Designator code (SPD) of KFS and an RE code of 4.

5.  The applicant's record of service shows he was AWOL during the periods of 4 May 2010 through 5 May 2010, for 2 days, and 20 May 2010 through 21 May 2010, for 2 days, until he returned to the unit both periods of AWOL.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 27 April 2010 for without authority, failing to go at the time prescribed to his appointed place of duty on divers occasions between (100218-100322), accountability formation and (100218-100301); and without authority, failing to go at the time prescribed to his appointed place of duty x 2 (100218, 100303), work call formation; it appears the Article 15 was not executed, (FG).

2.  An Article 15, dated 5 May 2009 for treating with contempt a noncommissioned officer (SGT), (090418); without authority, failing to go at the time prescribed to his appointed place of duty (090417); the punishment consisted of reduction to E-2, forfeiture of $434 pay (suspended) and extra duty for 14 days, (CG).

3.  An Article 15, dated 27 October 2008 for without authority, failing to go at the time prescribed to his appointed place of duty x 3 (080827, 080901, 080902); the punishment consisted of reduction to E-3, forfeiture of $208 pay (suspended) and extra duty for 14 days, (CG).

4.  He received twenty-six negative counseling statements completed between 27 August 2008 through 1 June 2010 for failing to report on divers occasions, disrespecting an NCO, disobeying an order from a commissioned officer, disobeying a lawful order on numerous occasions, and being absent without leave (AWOL) on more than one occasions.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided two online applications; DD Form 149; DD Form 214; and Discharge Orders 181-0135.

POST-SERVICE ACTIVITY: 

The applicant did not provide any with the application.

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.  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.  

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.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.
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 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 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 he was awarded an honorable discharge for the first half of his time in service from Sept 2005 to July 2008; and he requests a DD Form 214 and a DD Form 215, which shows an honorable discharge has been awarded.  The record shows the applicant initially enlisted in the Regular Army (RA) on 6 September 2005 and was discharged on           4 July 2007 for the purpose of immediate reenlistment.  He reenlisted on 5 July 2007; regulations in effect at the time did not authorize the issue of a separate DD Form 214.  However, his DD Form 214 does not indicate, in block 18, that he did complete his first term of service.

5.  Further, Chapter 2, AR 635-5 (Separation Documents), establishes the standardized policy for preparing and distributing the DD Form 214.  Effective 1 October 1979, military personnel who were discharged for the purpose immediate reenlistment were no longer issued a separate DD Form 214.

6.  The applicant requested issuance of these documents as soon as possible to expedite future employment and also receive unemployment he was not awarded while out of the Army.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  In addition, this is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued.  

7.  The records show the proper discharge and separation authority procedures were followed in this case.  

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:  9 August 2013          Location:  Washington, DC

Did the Applicant Testify:  NA

Counsel:  NA

Witnesses/Observers:  NA

Board Vote:
Character Change:  4	No Change:  1
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	General, Under Honorable Conditions
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		PV2/E-2
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)		AR20130004340



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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