IN THE CASE OF:  	

      BOARD DATE:  	25 October 2013

      CASE NUMBER:  	AR20130007899
___________________________________________________________________________

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, he was given an under other than honorable conditions discharge without getting a chance to re-establish his Army career.  He and his wife are expecting their second son and he would like an upgrade his discharge.  He served his country and sacrificed a lot.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		22 April 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			13 May 2010
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:			B Company, 4-6th Infantry Regiment (Rear) 							(Provisional), 4th Bde Cmbt Team, Fort Bliss, TX
f. Current Enlistment Date/Term:	8 January 2008, 4 years and 17 weeks
g. Current Enlistment Service:	11 months, 22 days
h. Total Service:			11 months, 22 days
i. Time Lost:				502 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		No
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant was enlisted in the Regular Army 8 January 2008, for a period of 4 years and 17 weeks.  He was 29 years old at the time of entry and a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman.  His record does not contain any evidence of acts of valor or meritorious achievements.  He was serving at Fort Bliss, TX when his discharge was initiated and he achieved the rank of PFC/E-3. 



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on      20 April 2010, the applicant was charged with absenting himself from his unit (AWOL), (081001-100215).

2.  On 3 May 2010, 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’s documentation recommending approval of the Chapter 10 request with an under other than honorable conditions discharge is not contained in the available record and government regularity prevails in the discharge process.  The senior commander recommended the applicant’s case be referred to a General Court-Martial.

3.  On 5 May 2010, 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 13 May 2010, 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 does not contain any negative counseling statements.

6.  The applicant's record of service shows he was AWOL during the period 1 October 2008 through 14 February 2010, for 502 days until he returned to the unit.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

An Article 15, dated 29 March 2010, for without authority, absenting himself from his unit (AWOL), (081001-100215); the punishment consisted of reduction to E-1, extra duty for 45 days and restriction for 45 days, (FG).

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, and a DD Form 214.

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, and the issues 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 given an under other than honorable conditions discharge without getting a chance to re-establish his Army career.  However, 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.  

5.  The applicant further contends he and his wife are expecting their second son and he would like an upgrade of his discharge.  This contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued.

6.  The applicant also contends he served his country and sacrificed a lot.  The applicant’s service accomplishments and the quality of his service prior to the incident that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge under review.  

7.  The records show the proper discharge and separation authority procedures were followed in this case.  

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:  25 October 2013      Location:  Washington, DC

Did the Applicant Testify:  No

Counsel:  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:		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)		AR20130007899



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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