IN THE CASE OF:  	Mr. 

      BOARD DATE:  	30 October 2013

      CASE NUMBER:  	AR20130006485
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding and the Discussion and Recommendation that follows, the Board determined the discharge is now inequitable.  The Board found the overall length and quality of the applicant's service, including his combat service mitigated the discrediting entry in his service record.  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 found the narrative reason for separation 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 discharge from under other than honorable conditions to general, under honorable conditions.

2.  The applicant states, in effect, that he was diagnosed with PTSD since 2008, possible TBI, that he served 10 years of active duty with 47 months of deployment and suffers with hearing loss.  He contends he detrimentally relied on the government's assurance that if he submitted a Chapter 10 request for a general, under honorable conditions discharge his commander and the OSJA Office would support his request.  The government did not uphold there end of the agreement.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			1 April 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				29 August 2012
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, Chapter 10 								KFS, RE-4
e. Unit of assignment:				R Trp, 8th Sqd, 1st Cav Regt, 2nd Bde 								(SBCT), (R) (P), 2nd IN Div, JBLM, WA
f. Current Enlistment Date/Term:		14 May 2010, 6 years
g. Current Enlistment Service:		2 years, 1 month, 22 days
h. Total Service:				9 years, 9 months, 18 days
i. Time Lost:					52 days 
j. Previous Discharges:			RA-020328-070927/HD											(Break-in-Service)												RA-080319-100513/HD
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		19D10, Cavalry Scout
m. GT Score:					96
n. Education:					GED
o. Overseas Service:				Southwest Asia, Korea
p. Combat Service:				Afghanistan (090702-100625)										Prior Period of Service: Iraq (030101-031014, 								050115-060228, and 061023-070912)
q. Decorations/Awards:			ARCOM, AAM-3, AGCM-3, ICM-w/4CS, 								ACM-w/2CS, NDSM, GWOTEM, GWOTSM, 								NPDR, ASR, OSR-4, CAB, NATOMDL, PUC
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			None
u. Prior Board Review:				No

SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 28 March 2002, for a period of 3 years.  On       25 June 2005, he reenlisted and served until his discharge on 27 September 2007, with an honorable discharge.  After a break in service, he reenlisted in the Regular Army on 19 March 2008, for a period of 3 years; he was 23 years old at the time.  On 14 May 2010, he reenlisted again for a period of 6 years.  His record indicates he served in Afghanistan and three periods in Iraq during his prior period of service; earned several awards to include an ARCOM, three AAM's, three AGCM's, and the CAB.  He achieved the rank of SGT/E-5.  He completed a total of 9 years, 9 months, and 18 days of active military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on     29 March 2012, the applicant was charged with the following offenses:

      a. going AWOL (120208-120305)
      
      b. stealing smoke grenades, military property of a value of $500.00 or less, the property of the Unites States Government between (110808 and 120208)
      
      c. stealing a signal illumination green star cluster, an explosive, military property of a value of $500.00 or less, the property of the United States Government between (110808 and 120208)

2.  On 30 July 2012, 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, and requested a general, under honorable conditions discharge.  In this request, the applicant admitted guilt to the offense, or a lesser included offense.  The applicant indicated he understood he could receive a general, under honorable condition or 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 own behalf. The unit commander and intermediate commander recommended approval of a general, under honorable conditions discharge.  The senior intermediate commander recommended approval of an UOTHC.

3.  On 1 August 2012, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of UOTHC.  The applicant was reduced to the lowest enlisted rank. 

4.  On 9 August 2012, the applicant submitted through defense counsel a request for reconsideration of his Chapter 10 characterization.  


5.  On 16 August 2012, the separation authority having reviewed the applicant's request for reconsideration of his discharge in lieu of trial by court-martial under the provisions of Chapter 10, AR 635-200, which included review of his submission of two chain of command recommendation that he did not consider when action was taken on 1 August 2012.  He decided not to change his original decision and directed that the applicant would be discharged and his service would be characterized as UOTHC.

6.  The applicant was discharged from the Army on 29 August 2012, with a characterization of service of UOTHC.

7.  The applicant’s record of service indicates 52 days of time lost; 10 days for being AWOL from 8 February 2012 until his return on 18 February 2012; 16 days for being AWOL from               18 February 2012 until being confined on 5 March 2012; and 27 days for being confined          5 March 2012 until his return to duty on 1 April 2012.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A MP Report dated 30 June 2011, that indicates the applicant was the subject of an investigation for driving while under the influence of alcohol.

2.  A General Officer Memorandum of Reprimand, dated 25 July 2011, for driving under the influence of alcohol on 29 April 2011, with a BAC of .144.

3.  Article 15, imposed on 13 December 2011, for unlawfully pushing Mrs. R.K., his wife on the chest with his hand and kicked her on the back with his foot (110910).  The punishment consisted of reduction to the grade of E-4, forfeiture of $1,162.00 pay per month for 2 months, extra duty and restriction for 45 days (all suspended), and oral reprimand (FG) 

4.  Record of supplementary action under Article 15 UCMJ, dated 7 February 2012, which vacates the suspension of punishment of reduction to the grade of E-4 and extra duty and restriction for 45 days imposed on 13 December 2011.  Vacation was based on the applicant making a false official statement to 1SG K.G.S. (120130).

5.  Two MP Reports dated 14 February 2012, that indicated the applicant was the subject of an investigation for going AWOL and Desertion.

6.  Two MP Reports dated 1 March 2012, that indicated the applicant was the subject of an investigation for failure to obey a written order or regulation (possession of pyrotechnics) and larceny of government property.

7.  An MP Report dated 12 April 2012, that indicated the applicant was the subject of an investigation for desertion and returned to military control. 


8.  A copy of a memorandum for commander, dated 1 March 2012, subject: AR 15-6 Investigation concerning discovery of US Army pyrotechnics in the on-post housing of SPC B., A., on 1 March 2012.

9.  Two NCOER covering the period of 1 June 2010 to 7 February 2012.  The applicant was rated overall as fully capable and marginal.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a copy of a memorandum, dated 1 August 2012, subject; Advice on Request for Discharge in Lieu of Court-Martial under provision of Chapter 10, AR 635-200, submitted by SPC/E-4 A.C.B., Request for Discharge in Lieu of Trial by Court-Martial, dated 30 July 2012, Court Document United States Army Trial Judiciary Fourth Judicial Circuit, dated 30 July 2012, and a copy of his DD Form 214 for the period of service under review.  The applicant indicated he was submitting his ERB and medical records; however, these documents were not found attached to the applicant's application.

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 characterization of service was carefully considered.  However, after examining the applicant’s record of service, the issues and the 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 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.  The applicant's record documents acts of significant achievement and valor as shown by his receiving of several awards to include an ARCOM, three AAM's, three AGCM's, and the CAB and his nine plus years of service.  However, in review of the applicant’s entire service record and the reasons for the discharge, these accomplishments did not overcome the reason for discharge and characterization of service granted.  

4.  The applicant contends that the government did not uphold their agreement for support of his request for a characterization of service of general, under honorable conditions.  The evidence of record shows the applicant requested discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial, and requested a general, under honorable conditions discharge.  The company and battalion commanders recommended the applicant be given a general, under honorable conditions discharge, and the brigade commander recommended the applicant be given an UOTHC discharge.  The intermediate commander and separation authority were not bound by the recommendation of characterization.  The separation authority considered the recommendation of the chain of command and decided his original decision would stand.  

5.  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.   The character of the applicant’s discharge is commensurate with his overall service record.  

6.  The applicant also contends that his medical issues (i.e., PTSD, possible TBI, and hearing loss) contributed to his discharge from the Army.  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.  Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service. 


7.  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:  30 October 2013        Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

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:			NA
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)		AR20130006485



Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1