IN THE CASE OF:	Mr. 

      BOARD DATE:  	13 November 2013

      CASE NUMBER:  	AR20130008679
___________________________________________________________________________

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 to upgrade his characterization of service from under other than honorable to general, under honorable conditions or honorable.  

2.  The applicant’s self-authored statement, in pertinent part and in effect, states he believes his discharge should be upgraded to honorable, and clemency should be considered because of the reason he left his training in 2006.  During a sweat drill, he fell on a slick concrete and felt severe pain.  He got back up because the drill sergeant was in his face yelling.  He was scared and in pain, but kept going.  The next morning, he was seen by a doctor.  He was given a profile to wear soft shoes and no training.  After a week, he was sent to a rehabilitation hold facility, treated with minor pain medication and no indication of returning to duty.  During that time in the middle of November, a military police made them stand in formation in summer PT uniform outside at one or two in the morning.  Another time, they stood in formation for several hours in freezing rain and sleet.  After three more weeks and being at training for eight weeks, a different doctor did an MRI and saw something with his back.  By that time, he was so dissatisfied with all the doctors, being treated like a criminal, and standing in formation for hours, he decided to go AWOL to obtain medical treatment at home for his pain.  He has tried to lead a good life while being mentally drained and in pain.  His AWOL is the only criminal issue he was jailed for—he had never been in jail.  He has a son now and wants him to be proud of his father.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	3 May 2013 
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	14 December 2007
	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:	WU, 2nd Bn, 10th Infantry Regiment, Fort Leonard 
			Wood, MO
	f.	Current Enlistment Date/Term:	5 September 2006, IADT
	g.	Current Enlistment Service:	0 years, 6 months, 0 days
	h.	Total Service:	0 years, 7 months, 4 days
	i.	Time Lost:	283 days 
	j.	Previous Discharges:	ARNG (060731-060904) / NA 
	k.	Highest Grade Achieved:	E-1
	l.	Military Occupational Specialty:	None
	m.	GT Score:	NIF
	n.	Education:	GED 
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	None
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No 
SUMMARY OF SERVICE:  

The applicant enlisted in the Army National Guard on 31 July 2006, for a period of 8 years.  He was 26 years old at the time of entry and had a high school equivalency (GED).  His record documents no acts of valor or significant achievement.  He was attending an individual active duty training at Fort Leonard Wood, MO, when he was separated from the Army on 14 December 2007, pursuant to his request to be discharged in lieu of trial by court-martial.  He was discharged from the Army National Guard on 16 December 2006, due to being dropped from the rolls.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 283 days of time lost for being AWOL from 16 November 2006 until his apprehension on 25 August 2007.

2.  The evidence of record contains a DD Form 458, Charge Sheet, which indicates that on 19 December 2006, the applicant was charged with desertion, in that on 16 November 2006, without authority and with the intent to remain away permanently, absented himself from his unit and remained so absent in desertion until his apprehension on 25 August 2007.  

3.  On 29 August 2007, 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.  Further, 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 own behalf.  

4.  The unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  

5.  On 15 November 2007, the separation authority approved the Chapter 10 request and directed an under other than honorable conditions discharge.  

6.  On 14 December 2007, the applicant was discharged from the Army accordingly.  The DD Form 214 (Report of Separation from Active Duty), he was issued, shows he completed 7 months and 4 days of creditable reserve and active military service.  It includes being placed on involuntary excess leave (creditable for all purposes except pay and allowances) for 107 days from 30 August 2007 to 14 December 2007.  The DD Form 214 also shows he accrued 283 days of time lost due to being AWOL from 16 November 2006 until his apprehension on 25 August 2007.

7.  He was apprehended by civil authorities and returned to military control.




EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   The Army National Guard separation packet that includes DD Form 458, Charge Sheet, AWOL related documents, and separation action from the ARNG.

2.  DD Form 616, Report of Return of Absentee, dated 25 August 2007, indicates the applicant was apprehended by civil authorities on 25 August 2007.  This report is included with documents relating to AWOL and DFR status in his record.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a self-authored statement.

POST-SERVICE ACTIVITY: 

The applicant states, in effect, he now has a son who he wants to be proud of his father. 

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.  

2.  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.  

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his 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 that he was having medical issues and dissatisfied with all the doctors for not resolving his back injury, and was mistreated at the rehabilitation hold facility when he decided to go AWOL.  However, he had many legitimate avenues through which to obtain assistance or relief, such as the numerous Army community services, 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.  

5.  Furthermore, 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.  

6.  Therefore, the reason 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:  13 November 2013     Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  Yes (redacted)

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)		AR20130008679



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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