IN THE CASE OF:  	Mr. 

      BOARD DATE:  	8 January 2014

      CASE NUMBER:  	AR20130008070
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation which follows, the Board determined the characterization of service was too harsh based on the overall length and quality of the applicant's service, and as a result it is inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  The Board further determined the reason for discharge was both proper and equitable and voted not to change it.  This action entails restoration of grade to SSG/E-6.




      
      
      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 or honorable.

2.  The applicant states, in effect, he was a decorated, well respected noncommissioned officer who always placed his mission first and was selected to compete in a combat field training competition.  His concerns were for his Soldiers and himself in the event of area wild life attack and that only.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		29 April 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			25 September 2012
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:			Forward Support Company (Airborne), 6th Engineer 						Battalion, Joint Base Elmendorf-Richardson, AK
f. Current Enlistment Date/Term:	26 April 2010, indef
g. Current Enlistment Service:	2 years, 5 months
h. Total Service:			13 years, 10 months, 14 days
i. Time Lost:				None
j. Previous Discharges:		USAR (981112-981229)/NA									RA (981230-010320)/HD										RA (010321-020416)/HD										RA (020417-050428)/HD										RA (050429-070222)/HD										RA (070223-100425)/HD
k. Highest Grade Achieved:		E-6
l. Military Occupational Specialty:	92G30, Food Service Operations/68M20, Nutrition						Care Specialist
m. GT Score:				97
n. Education:				HS Graduate
o. Overseas Service:			Korea/Germany/Southwest Asia/Alaska
p. Combat Service:			Iraq (100112-101230)
q. Decorations/Awards:		ARCOM-2, AAM-6, AGCM-4, NDSM, ICM-W/2 CS 						GWOTSM, KDSM, NPDR-2, ASR, OSR-3, MUC
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		No
u. Prior Board Review:			No




SUMMARY OF SERVICE:

The applicant enlisted in the USAR on 12 November 1998 and was discharged on                 29 December 1998.  He enlisted in the Regular Army on 30 December 1998 for a period of 3 years.  He was 20 years old at the time of entry and a high school graduate.  On 21 March 2001, he reenlisted for a period of 2 years and was 22 years old at the time.  He reenlisted on 17 April 2002 for a period of 4 years and was 23 years old at the time.  His last enlistment on 26 April 2010 was for an indefinite period and he was 31 years old at the time.  His record also shows that he served a combat tour, earned several awards including an ARCOM-2, AAM-6, AGCM-4; and he achieved the rank of SSG/E-6.  He was serving at Joint Base Elmendorf-Richardson, AK when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on      3 August 2012, the applicant was charged with the following offenses:

     a.  willfully disobeying a lawful general regulation, to wit: United States Army Alaska Regulation 190-1, by wrongfully carrying an unregistered privately owned firearm on Joint Base Elmendorf-Richardson (120523)

     b.  willfully disobeying a lawful general regulation, to wit: United States Army Alaska Regulation 190-1, by wrongfully carrying an unregistered privately owned firearm with a chambered round on Joint Base Elmendorf-Richardson (120523)

     c.  willfully disobeying a lawful general regulation, to wit: United States Army Alaska Regulation 190-1, by wrongfully discharging a privately owned firearm on Joint Base Elmendorf-Richardson (120523)

     d.  willfully disobeying a lawful general regulation, to wit: United States Army Alaska Regulation 190-1, by wrongfully taking a personally owned firearm into a training environment (120523)

     e.  wrongfully and willfully discharging a firearm, to wit: a shotgun, at the Engineer Skill Training Area, under circumstances such as to endanger human life, and that said conduct was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces (120523)

     f.  wrongfully endeavoring to impede an investigation by telling SPC SF to lie when questioned and say he had no information about any weapon being discharged or words to that effect, and that said conduct was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces (120523)



g.  wrongfully endeavoring to impede an investigation by telling SPC WS, “Hey man, you gotta tell them I didn’t do nothing or they will take my five hundred dollar gun” or words to that effect, and that said conduct was to the prejudice of good order and discipline in the armed forces and was of a nature to bring discredit upon the armed forces (120523)

2.  On 13 September 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.  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 submitted a statement on his own behalf.  The applicant’s chain of command recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  

3.  On 13 September 2012, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant’s record does not contain any evidence of unauthorized absences, time lost negative counseling statements or any actions under the Uniform Code of Military Justice (UCMJ).

5.  The applicant was discharged from the Army on 25 September 2012, with a characterization of service of under other than honorable conditions under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, a Separation Program Designator code (SPD) of KFS and an RE code of 4.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains a successful NCO Evaluation Report covering the period of 10 July 2010 through 9 July 2011.  

2.  The record also contains a DD Form 214; dated 25 September 2012 and discharge orders 261-0171 dated 17 September 2012.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, DD Form 149, information paper regarding the upgrade of his discharge (nine pages), Enlisted Record Brief (ERB), enlisted reductions summary, Orders 195-246 (three pages), five support/character statements, statement regarding the Phillip A. Connelly competition (three pages), Chapter 10 discharge packet (ten pages), AF IMT 1168 (Statement by Complainant), 11 DA Forms 2166-8 (NCO Evaluation Report), immediate reenlistment (twelve pages), four honorable discharge certificates, two DD Forms 214 and Discharge Orders 261-0171). 


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, the issues and 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 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 he served a tour in combat, showed acts of significant achievement and valor; however it did not support the issuance of a general, under honorable conditions or an honorable discharge by the separation authority and it does not support an upgrade of a general, under honorable conditions or an honorable discharge at this late date.  
4.  The applicant contends he was a decorated, well respected noncommissioned officer who always placed his mission first and was selected to compete in a combat field training competition.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to overcome the reason for discharge and characterization of service granted.

5.  The applicant further contends his concerns were for his Soldiers and himself in the event of an area wild life attack.  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.  

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

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:  8 January 2014      Location:  Washington, DC

Did the Applicant Testify:  NA

Counsel:  (yes) redacted

Board Vote:
Character Change:  3	No Change:  2
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:		SSG/E-6
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)		AR20130008070



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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