IN THE CASE OF:  	Mr. 

      BOARD DATE:  	18 September 2013

      CASE NUMBER:  	AR20130004517
___________________________________________________________________________

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 his under other than honorable conditions discharge be upgraded to general, under honorable conditions.

2.  The applicant states, in effect, that he joined the Army Reserve with an understanding that he would be sent to school training and treated as a prior service Soldier.  He was given the impression that he would be trained separately from the new recruits straight out of basic training.  He served four honorable years in the Marine Corps.  When he arrived, he realized that his recruiter had lied to him.  This discharge is affecting his ability to receive benefits for his active duty service.  He was only in the Army Reserve for five months, and his intentions were honorable.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			4 March 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				20 September 2004
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:				Bravo Company, 232d Medical Battalion, 32d 							Medical Brigade, Fort Sam Houston, TX 
f. Enlistment Date/Term:			16 April 2004, 3 years
g. Current Enlistment Service:		0 years, 4 months, 20 days
h. Total Service:				9 years, 11 months, 10 days
i. Time Lost:					15 days 
j. Previous Discharges:			USMCR (940707-940925), NA									USMC (940926-980925), HD
k. 						USMCR (980926-020705), NA									USAR (040223-040415), concurrent service
l. Highest Grade Achieved:			E-4
m. Military Occupational Specialty:		None
n. GT Score:					NIF
o. Education:					College Graduate
p. Overseas Service:				None
q. Combat Service:				None
r. Decorations/Awards:			NDSM
s. Administrative Separation Board: 		No
t. Performance Ratings:			None
u. Counseling Statements:			Yes
v. Prior Board Review:				No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Army Reserve on 16 April 2004, for a period of 3 years.  He was 30 years old and had a college degree.  His record indicates he had over four years in the Regular Marine Corps and almost 4 years in the Marine Corps Reserve.  He was serving at Fort Sam Houston, TX, when his discharge was initiated.  His record does not contain any meritorious achievements or acts of valor.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 15 days of time lost for being AWOL (040706-040720).  The applicant’s DD Form 214 also shows he had 3 days of non-chargeable AWOL (040812-040815).  In the applicant’s request for discharge, the following charges were preferred against him:

      a.  Fail to go; AWOL x 2
      b.  Article 89 - Disrespect 

2.  Court-martial charges were preferred against the applicant for violating the Uniform Code of Military Justice (UCMJ) specifically for above mentioned misconduct.

3.  On 9 September 2004, 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 indicated he would not submit a statement on his own behalf.  

5. On 17 September 2004, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued an under other than honorable conditions discharge certificate.  

6.  On 20 September 2004, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed a total of 9 years 6 months, and 20 days of active duty and reserve time and had 15 days time lost due to being AWOL.   However, based on the enlistment contract in the record, the applicant completed      8 years, 6 months, and 10 days of military service.


EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Numerous negative counseling’s covering the period 15 June 2004 through 16 August 2004 for failure to follow instructions, disrespect to a commissioned officer, AWOL, presenting provoking speech, violation of Article 92, being a high risk for AWOL and suicide, failure to report, and being in the wrong uniform. 

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a copy of his DD Form 214.  

POST-SERVICE ACTIVITY: 

None were provided with the application.  

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.  However, after examining the applicant’s record of service, the issue and document 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 offenses 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 applicant contends that his prior honorable service with the Marine Corps outweighs his five months in the Army Reserve.  He was lied to by his recruiter that he would be trained separately from the new recruits.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the court-martial charges that were filed against him.  The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  

4.  The applicant contends the under other than honorable discharge is affecting his benefits.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

5.  The applicant also contends that his recruiter lied to him.  However, the record does not contain any indication or evidence of arbitrary or capricious actions by anyone and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   The character of the applicant’s discharge is commensurate with his overall service record.  

6.  Therefore, the reason for the discharge 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:  18 September 2013      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA

Board Vote:
Character Change:  2	No Change:  3
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)		AR20130004517



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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