IN THE CASE OF:  	Mr. 

      BOARD DATE:  	20 November 2013

      CASE NUMBER:  	AR20130008533
___________________________________________________________________________

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 or honorable.

2.  The applicant states, in effect, his discharge was inequitable because it was based on an isolated incident during 36 months of service.  His discharge was inequitable due to the fact he served 99.9 percent of his active duty service required by his contract.  He was hastily and unjustly discharged from service due to the perceived racial prejudices of his current chain of command at the time of his discharge after serving honorably with previous chains of command without serious incident.  He is interested in continuing to serve his country by civil or federal employment and his discharge does not allow him do so.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		1 May 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			23 September 2002
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:			D Co, 123rd Signal Battalion, Fort Stewart, GA
f. Current Enlistment Date/Term:	30 September 1999, 3 years
g. Current Enlistment Service:	2 years, 11 months, 14 days
h. Total Service:			2 years, 11 months, 14 days
i. Time Lost:				10 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	54B10, Chemical Operations Specialist
m. GT Score:				107
n. Education:				GED Certificate
o. Overseas Service:			Kosovo
p. Combat Service:			None
q. Decorations/Awards:		AFEM, ASR, NATO MDL
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:	

The applicant was enlisted in the Regular Army 30 September 1999, for a period of 3 years. He was 19 years old at the time of entry with a GED Certificate.  He was initially trained in and awarded military occupational specialty (MOS) 54B10, Chemical Operations Specialist.  His record also shows he had no combat service and did not earn any awards of acts of valor or meritorious achievements.  He was serving at Stewart, GA 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      9 August 2002, the applicant was charged with the following offenses:

     a.  absenting himself from his unit (AWOL) (020622-020722).

     b.  wrongfully using marijuana x 2 (020405-020506) and (020507-020528)

2.  On 5 September 2002, 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 applicant’s chain of command recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  

3.  On 12 September 2002, 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 was discharged from the Army on 23 September 2002, 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 shows he was AWOL during the period 6 September 2002 15 September 2002 for 10 days, mode of return unknown.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 8 April 2002 for without authority, failing to go at the time prescribed to his appointed place of duty x 2 (020319, 020312); the punishment consisted of reduction to    E-2 and extra duty for 14 days, (CG). 

2.  An Article 15, dated 6 September 2001 for being found drunk on duty at the accountability formation (010816); the punishment consisted of reduction to E-2 (suspended), extra duty for 14 days and restriction for 14 days, (CG).

3.  On 31 October 2001, the suspension of punishment of reduction to E-2 was vacated for the new offense of failing to go at the time prescribed to his appointed place of duty (011024).

4.  An Article 15, dated 22 August 2001 for without authority, failing to go at the time prescribed to his appointed place of duty x 2 (010801, 010809); the punishment consisted of extra duty for 14 days and restriction for 14 days, (Summarized). 
5.  The record contains four negative counseling statements, dated 17 May 2002, 29 May 2002, 21 June 2000 and 22 July 2000 for being recommended for separation under Chapter 14-12b,testing positive for marijuana, failing the Army Physical Fitness Test (APFT), a pattern of misconduct and being AWOL. 

6.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 4 June 2002, which indicated the applicant presented a clear mental status and he was psychiatrically cleared for action deemed appropriate by command.

7.  An unexecuted Article 15, dated 6 June 2002 for wrongfully using marijuana.

8.  The record of evidence contains two positive urinalysis reports coded IR (Inspection Random), dated 6 May 2002 and 28 May 2002 for marijuana.

9.  The record of evidence also contains four DA Forms 4187 (Personnel Action), dated between 24 June 2002 and 17 September 2002, which indicated the present for duty and AWOL dates.

10.  A DA Form 8003 (Alcohol and Drug Prevention and Control Program (ADAPCP) Enrollment, which indicated in all likelihood the applicant was command referred to ADAPCP, although the self referred block is checked. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

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 issue 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 no acts of significant achievement or valor and 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 to a general, under honorable conditions or an honorable discharge at this late date.  

4.  The applicant contends his discharge was inequitable because it was based on an isolated incident during 36 months of service.  However, the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicant’s numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. 

5.  The applicant further contends his discharge was inequitable due to the fact he served 99.9 percent of his active duty service required by his contract.  AR 635-200, provides the characterization of service will be determined solely by the military record during the current enlistment or period of service, plus any extension thereof, from which the Soldier is being separated.  

6.  The applicant also contends he was hastily and unjustly discharged from service due to the perceived racial prejudices of his current chain of command at the time of his discharge, after serving honorably with previous chains of command without serious incident.  The evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

7.  Further, 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.

8.  Additionally, 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.

9.  Furthermore, the applicant contends he is interested in continuing to serve his country by civil or federal employment and his discharge does not allow him do so.  The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

10.  Moreover, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 4.  There was no basis upon which to grant a change to the RE code.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 

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

12.  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:  20 November 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)		AR20130008533



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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