IN THE CASE OF:  	

      BOARD DATE:  	19 June 2013

      CASE NUMBER:  	AR20130008562
___________________________________________________________________________

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 to be 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 he was wrongfully accused of assault and requested a Chapter 10 not knowing what the results would be.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			2 May 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				4 October 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:				554th Engineer Company, Fort Stewart, GA
f. Enlistment Date/Term:			29 April 2008, 4 years
g. Current Enlistment Service:		3 years, 5 months, 6 days
h. Total Service:				3 years, 5 months, 6 days
i. Time Lost:					None 
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		25U10, Signal Support Systems Specialist
m. GT Score:					116
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Afghanistan (100501-110428)
q. Decorations/Awards:			ARCOM, AAM, AGCM, NDSM, ACM-2 									GWOTSM, ASR, OSR, NATO MDL, CAB
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:

The record shows the applicant enlisted in the US Army on 29 April 2008 for a period of 4 years.  He was 21 years old at the time and was a high school graduate.  His record indicates he served a total of 3 years, 5 months and 6 days of a 4-year enlistment and served in Afghanistan for 12 months.  The record documents several awards including an ARCOM, AAM, AGCM and a CAB.


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet, which indicates that on     8 September 2011, the applicant was charged with the following offenses:

      a. Assault upon a commissioned officer (110829)
      b. Communicating a threat to a commissioned officer (110829)
      c. Violation of a lawful general regulation by wrongfully possessing spice (110822)

2.  On 9 September 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 offenses, 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 recommended trial by a general court-martial.

3.  On 15 September 2011, 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 4 October 2011, with a characterization of service of under other than honorable conditions.

5.  The applicant’s record of service indicates he was placed in pretrial confinement on          29 August 2011; however, this lost time is not reflected on his DD Form 214.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There are 3 negative counseling statements dated 9 August 2011 (2) and 23 August 2011, related to offenses of wrongfully possessing spice, and failing to report twice.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided no supporting documents with his application.

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 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 offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested a discharge from the Army 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 that he was wrongfully accused of assault and requested a Chapter 10 discharge without knowing its consequences.  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 his issue.  There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that he was wrongfully accused or unjustly discriminated.  In fact, the applicant’s offenses as described on the DD Form 458, Charge Sheet, justify his discharge from the Army for the commission of very serious offenses.  He assaulted his company commander who was then in the execution of his duties and threatened him with serious bodily harm.  Therefore, the applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence in support of his request for an upgrade of his discharge.  

4.  Moreover, the record shows that on 9 September 2011, the applicant consulted with a member of Trial Defense Services, who made him aware of his rights and the options available to him.  The applicant’s record does not contain any indication or evidence of arbitrary or capricious actions by the command.  
5.  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:  19 June 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)		AR20130008562

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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