IN THE CASE OF:  	Mr. 

      BOARD DATE:  	16 October 2013

      CASE NUMBER:  	AR20130007432
___________________________________________________________________________

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, that he would like an upgrade of his discharge for the purpose of being able to obtain employment.  He contends that because of family problems he needed to get out of the military.  His sergeant kept telling him that he would be discharged; however, the paperwork was never completed.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			15 April 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				31 October 2011
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, Chapter 10, 								KFS, RE-4
e. Unit of assignment:				3rd BCT, 4th IN Div, Fort Carson, CO
f. Current Enlistment Date/Term:		14 July 2004, 3 years and 22 weeks
g. Current Enlistment Service:		10 months, 21 days
h. Total Service:				10 months, 21 days
i. Time Lost:					2,339 days 
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-2
l. Military Occupational Specialty:		92F10, Petroleum Supply Specialist
m. GT Score:					98
n. Education:					GED
o. Overseas Service:				None
p. Combat Service:				NDSM, GWOTSM, ASR
q. Administrative Separation Board: 		No
r. Performance Ratings:			None
s. Counseling Statements:			None
t. Prior Board Review:				No

SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 14 July 2004, for a period of 3 years and         22 weeks.  He was 24 years old at the time and had a high school equivalency (GED).  He was serving at Fort Carson, CO when his discharge was initiated.  The 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      15 September 2011, the applicant was charged with desertion (060412-110822)

2.  On 4 October 2011, 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 and intermediate commanders recommended approval of an UOTHC discharge.  

3.  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.  The applicant was discharged from the Army on 31 October 2011, with a characterization of service of UOTHC.  

5.  The applicant’s record of service indicates 2,339 days of total time lost; 2,337 days for desertion from 29 March 2005 until his return on 22 August 2011 and 2 days for confinement civilian authority from 22 August 2011 to 24 August 2011.

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 submitted a DD Form 293.

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 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 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.  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 his action of desertion was the result of family problems and no assistance from a member of his chain of command.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his action of desertion was the result of family problems or that he request assistances from his chain of command.  The applicant had many legitimate avenues through which to obtain assistance or relief and 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.  

5.  The applicant expressed his desire for an upgrade of his discharge for the purpose of being able to obtain employment.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

6.  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)		AR20130007432



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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