IN THE CASE OF:  	Mr. 

      BOARD DATE:  	28 August 2013

      CASE NUMBER:  	AR20130005569
___________________________________________________________________________

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

2.  The applicant states, in effect, he was told by the VA he could fight the type of discharge he received and possibly get it upgraded.  His unit did not attempt to assist him; he was just sent to the hospital where he was diagnosed with Attention Deficit Disorder (ADD) 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		18 March 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			8 December 1999
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:			C Co, 1-5th Infantry Regiment, Fort Lewis, WA
f. Current Enlistment Date/Term:	19 November 1996, 4 years
g. Current Enlistment Service:	2 years, 15 days/block 12c on the applicant’s DD Form 214 net active service this period, is incorrect and should read 2 years, 15 days to 					account for period of AWOL from 									25 August 1998 through 25 April 1999
h. Total Service:			7 years, 6 months, 11 days/block 12e on the 							applicant’s DD Form 214 total prior inactive service, is 					incorrect and should read 2 years, 2 days
i. Time Lost:				365 days
j. Previous Discharges:		USAR-(790216-790319/NA									RA-(790320-830317)/HD										USARCG-(830318-850215)/HD									USAR-(910328-921009)/UNC
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				89
n. Education:				HS Graduate
o. Overseas Service:			Korea (prior service/PS)
p. Combat Service:			None
q. Decorations/Awards:		AGCM/PS, NDSM, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		No
u. Prior Board Review:			No





SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 20 March 1979, for a period of 4 years.  He was 19 years old at the time of entry and a HS Graduate.  He was discharged on 17 March 1983 with an honorable characterization of service and assigned to U.S. Army Reserve Control Group (USARCG).  He was discharged from USARCG with an honorable discharge.  The applicant reenlisted in the Regular Army on 19 November 1996, for a period of 4 years and he was 37 years old.  His record does not contain any evidence of acts of valor or meritorious achievements.  He was returned to military control at Fort Sill, OK and discharged from active duty.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on      1 September 1999, the applicant was charged with absenting himself from his unit (AWOL) x 2 (980825-990426) and (990427-990826). 

2.  On 2 September 1999, 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 did not submit a statement on his behalf.  The unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  

3.  On 22 November 1999, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions

4.  The applicant was discharged from the Army on 8 December 1999, 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 25 August 1998 through 25 April 1999, for 244 days until he was apprehended, this period is not annotated on the DD Form 214 block 29, dates of time lost during this period and 27 April 1999 through      25 August 1999, for 121 days, until he surrendered.  The applicant also had 98 days of excess leave from 2 September 1999 through 8 December 1999.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The record of service does not contain any negative counseling statements or actions under the Uniform Code of Military Justice (UCMJ).

EVIDENCE SUBMITTED BY THE APPLICANT:

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

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 told by the VA he could fight the type of discharge he received and possibly get it upgraded.  The record of evidence does not show the applicant’s discharge was upgraded or he had submitted a prior application requesting an upgrade.

5.  Further, the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge.  Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both, were improper or inequitable.

6.  The applicant further contends his unit did not attempt to assist him; he was just sent to the hospital where he was diagnosed with Attention Deficit Disorder (ADD).  However, the service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition.  

7.  Also, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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:  28 August 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)		AR20130005569



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1