IN THE CASE OF:  	Mr.

      BOARD DATE:  	17 July 2013

      CASE NUMBER:  	AR20130008955
___________________________________________________________________________

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 characterization of service is now too harsh based on the applicant’s length and quality of his service to include his combat service and as a result it is inequitable.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  The Board determined the reason for discharge was proper and equitable and voted not to change it.  This action entails restoration of grade to E-5/SGT.



      
      
      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 general, under honorable conditions.

2.  The applicant states, in effect, that he was unfairly discharged and the actions taken by his chain of command were done to punish him after the rape charge against him was dismissed.  The CID investigation determined the rape offense did not occur.  He was discharged as a result of an illegal search of his room and accused of failing to turn in military ammunition of a value of $18.58.  Such charges were for violations of Articles 92 and 121 of the Uniform Code of Military Justice.  He states the unit commander did not have the authority to order a search of his room because temporary billeting is not under jurisdiction of the commander and a search warrant was not obtained. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			10 May 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				12 August 1998
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:				HHT, 2d Squadron, 3d ACR, Fort Carson, CO
f. Enlistment Date/Term:			4 June 1997, 3 years
g. Current Enlistment Service:		1 year, 2 months, 9 days
h. Total Service:				8 years, 4 months, 10 days
i. Time Lost:					None 
j. Previous Discharges:			RA (900403-941002), HD   										RA (941003-970603), HD				
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		19D10, Cavalry Scout
m. GT Score:					90
n. Education:					HS Graduate
o. Overseas Service:				SWA, Germany
p. Combat Service:				SWA (900904-910328)
q. Decorations/Awards:			ARCOM, AGCM, NDSM, SWASM-2, ASR, 								OSR, KLM (Kuwait)
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			None
u. Prior Board Review:				No


SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 3 April 1990.  He reenlisted twice and his last contract shows that on 4 June 1997, he reenlisted for a period 3 years.  At the time of this last reenlistment he was 26 years old.  The applicant achieved the rank of SGT/E-5 and received several awards including an ARCOM and an AGCM.  He had a combat tour in Southwest Asia during the first Gulf War.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The available evidence of record does not contain the DD Form 458, Charge Sheet that was used as the basis for the Chapter 10 discharge.  However, the applicant provided a copy of the DD Form 458, Charge Sheet, which indicates that on 29 June 1998, he was charged with the following offenses:

      a. Violation of the UCMJ, Article 92, dereliction of duty by willfully failing to turn in 	military ammunition into the unit amnesty box (980415)
      b. Violation of the UCMJ, Article 121, theft of ammunition (980415), military property, of 	a value of about $18.58, property 	of the United States
      
2.  The applicant’s election of rights and documents related to his voluntary request for discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial are not contained in the available record.  In his request, the applicant would have admitted guilt to the offense, or a lesser included offense.  Further, the chain of command’s recommendations are also not contained in the available record.

3.  The DD Form 214 indicates that on 12 August 1998, the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  Further, the DD Form 214 shows a Separation Code of KFS (in lieu of trial by court-martial) and reentry eligibility (RE) code of 4.

4.  The applicant’s available record does not show any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There are no counseling statements or any other UCMJ actions in the available record.  

2.  The record contains 2 NCOERs, for the period under review.  The first one for the period 9610-9709, the applicant was rated as Among the Best, 2/2.  The second NCOER for the period of 9710-9801, the applicant was rated as Fully Capable, 2/2.


EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a copy of his DD Form 214, a self-authored statement, a copy of a CID Report dated 14 May 1998, a copy of DD Form 458/Charge Sheet, and DA Form 2-1.   

POST-SERVICE ACTIVITY: 

None were 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 the characterization of his discharge was carefully considered.  

2.  After examining the applicant’s available record of service, the documents and the issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's characterization of service to general, under honorable conditions, for the following reasons:  

	a. Length and quality of his service:  The applicant served for over 8 years without a blemish in his record.  He reenlisted two times and these prior periods of service are determined to be honorable.

	b. The record confirms the applicant received several awards including an ARCOM and an AGCM which attests to his service accomplishments.

	c.  The applicant achieved the rank of Sergeant and his record does not contain any evidence of negative counseling’s or any other action under the Uniform Code of Military Justice, except for the charges of dereliction of duty by failing to turn in ammunition valued at about $18.50, which ultimately caused his discharge from the Army.

3.  This recommendation is made after full consideration of the entire applicant’s faithful and honorable service, as well as the incident of misconduct that brought the court-martial charges against him.  The evidence in this case supports a conclusion that the applicant’s characterization of service may now be too harsh and as a result inequitable.  

4.  The applicant contends he was unfairly discharged based on an illegal search ordered by the unit commander.  However, the record does not contain any documentation related to an illegal search.  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 unjustly discharged.   In fact, the applicant provided evidence which indicates that court-martial charges had been filed against him.  He would have had to voluntarily request a discharge from the Army under the provision of Chapter 10, AR 635-200.

5.  In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant full relief in the form of an upgrade of the characterization of service to general, under honorable.  However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable.  This action entails restoration of grade to E-5/SGT.



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:         Records Review   Date:  17 July 2013           Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA

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:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		SGT/E-5
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)		AR20130008955

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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