IN THE CASE OF:  	Mr. 

      BOARD DATE:  	16 October 2013

      CASE NUMBER:  	AR20130006825
___________________________________________________________________________

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 general, under honorable conditions.

2.  The applicant states, in effect, his discharge was the result of being misdiagnosed for a hip injury.  He contends he was injured while holding a 105mm round, and that although he was receiving treatment he continued to suffer with pain.  As a result of his injury he had no desire to continue serving in the military.  He also contends that while he was AWOL, he learned about a warrant by the civilian authority that was pending against him.  Because of the two actions pending against him he chose not to report to his duty station as instructed by his recruiter.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			8 April 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				17 December 2001
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, Chapter 10 								KFS, RE-4
e. Unit of assignment:				C Co, AG Repl Det, Fort Benning, GA
f. Current Enlistment Date/Term:		3 January 2000, 3 years
g. Current Enlistment Service:		1 year, 6 months, 26 days
h. Total Service:				1 year, 6 months, 26 days
i. Time Lost:					139 days
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-1
l. Military Occupational Specialty:		None
m. GT Score:					123
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			None
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No





SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 3 January 2000, for a period of 3 years.  He was 17 years old at the time of entry and a high school graduate.  His record does not contain any evidence of acts of valor or meritorious achievements.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on    31 October 2000, the applicant was charged with going AWOL x 2 (000531-000824 and 00830-001024).

2.  On 31 October 2000, 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 own behalf.  The unit commander recommended approval of an UOTHC discharge.  

3.  On 29 November 2001, the separation authority approved the Chapter 10 request and directed the applicant's discharge with a characterization of service of UOTHC.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 17 December 2001, with a characterization of service of UOTHC under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with a Separation Program Designator code (SPD) of KFS and an RE code of 4. 

5.  The applicant's record of service indicates he had 139 days of time lost for being AWOL two times; for 83 days from 31 May 2000 until his voluntary return on 22 August 2000 and for 56 days from 29 August 2000 until his voluntary return on 24 October 2000.  The applicant's total active service includes 412 days of excess leave from 1 November 2000 until 17 December 2001.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There are no negative counseling's or actions under the Uniform Code of Military Justice.   

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, two self-authored statements, court document dated 31 July 2002, medical documents pertaining to hip strain, documents taken from AMHRR, documents from discharge packet, copy of his Army Physical Fitness Test Scorecard, a copy of his credit report, home insurance document, a copy of his resume, and a copy of his          DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

None 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 her characterization was carefully considered.  However, after examining the applicant’s record of service and the issue 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’s post-service accomplishments have been noted as outlined on the application and in the documents with the application.  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.  

5.  The applicant contends he was having medical issues with his hip that ultimately caused him to go AWOL and being discharged.  However, the record indicates the applicant was receiving medical attention.  If he continued to have problems he had many legitimate avenues through which to obtain assistance or relief, there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  The record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication.  

6.  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.  

7.  The applicant also contends that upgrades are few and far between and that they are for those who have attorneys.  However, the applicant should be aware; each case is decided on its own merits and a change in the discharge may be warranted if the Board determines the characterization of service or the reasons for discharge, or both were improper or inequitable, not based on if an applicant has an attorney or not.

8.  Therefore, the reason 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: 16 October 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)		AR20130006825

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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