IN THE CASE OF:  	

      BOARD DATE:  	15 November 2013

      CASE NUMBER:  	AR20130007606
___________________________________________________________________________

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 honorable.

2.  The applicant states, in effect, that his recruiter lied to him about the best needs of the Army.  He was told that it meant that he would be stationed in different locations.  He initially enlisted to be a mechanic and was re-classed to be a reconnaissance scout.  After going to Iraq the first time, he knew being a scout wasn’t for him.  He asked to change his military occupational specialty (MOS) and was told that he had to re-enlist first to talk over other options.  After re-enlisting, he was told that it was too late to change his MOS.  After his second tour in Iraq, he was stationed in Kentucky and had some trouble because he was sure that he didn’t want to continue his career in the Army as a scout.  At this time, his mother had a heart attack and was hospitalized.  He was denied regular leave four times by his supervisors because he did not have enough days accrued.  He asked about emergency leave and was told about Red Cross; however, he was never told how to contact them.  He even asked for a mileage pass and that was denied also.  Out of frustration, he left and went to California, but his mother had passed by the time he arrived.  He returned from AWOL and was told to leave and not come back because he was a sorry excuse for a Soldier so he left again.  His brother, who is in the Army asked him to turn himself in.  Now, he would like to further his career, support his family, and receive his educational benefits.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			22 April 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				17 August 2011
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 Troop, 1-75th Cavalry Regiment, 2d 							Brigade Combat Team, HQs, 101st 								Airborne Division (Air Assault), Fort Campbell 							KY
f. Enlistment Date/Term:			24 October 2007, 6 years
g. Current Enlistment Service:		3 years, 9 months, 24 days
h. Total Service:				3 years, 11 months, 25 day
i. Time Lost:					695 days 
j. Previous Discharges:			RA (050929-071023), HD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		19 D10, Cavalry Scout
m. GT Score:					89
n. Education:					HS Graduate
o. Overseas Service:				SWA x 2
p. Combat Service:				Iraq (060427-070425 and 080309-090314)
q. Decorations/Awards:			ARCOM-2, AGCM, NDSM, ICM-w/CS-3	 							GWOTSM, ASR, OSR-2
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 29 September 2005, for a period of 5 years and 20 weeks.  He was 19 years old and had a high school diploma.  He reenlisted on 24 October 2007 for a period of 6 years.  His record indicates he served for 
3 years, 11 months, and 25 days.  The record shows he was awarded two ARCOMs.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 20 July 2011, court-martial charges was preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) specifically for being AWOL between 24 July 2009 and 18 June 2011.  

2.  On 1 August 2011, 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 in lieu of trial by court-martial.

3.  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 in his own behalf.  

4.  On 10 August 2011, 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.  

5.  On 17 August 2011, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed a total of 3 years, 
11 months and 25 days of creditable active military service and accrued 695 days of time lost due to being AWOL.  



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There are no negative counselings or actions under the Uniform Code of Military Justice.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a copy of his DD Form 214.  

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 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 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 his recruiter lied to him about his MOS and he was unable to re-classify.  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 he was misled by his recruiter or not given a fair opportunity to re-classify.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.   

4.  The applicant contends he was not given the opportunity to take regular or emergency leave when his mother had a heart attack.  When he returned from AWOL, he was told to leave again.  However, he 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.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge.

5.  The applicant contends he is requesting an upgrade for VA benefits, in order to better support his family and receive educational benefits.  The ADRB does not upgrade discharges to obtain access to VA benefits.  

6.  Lastly, 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.  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:  15 November 2013	Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

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:		No Change
Change RE Code to:			No Change
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)		AR20130007606



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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