IN THE CASE OF:  	Mr. 

      BOARD DATE:  	13 December 2013

      CASE NUMBER:  	AR20130009321
___________________________________________________________________________

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.

2.  The applicant states, in effect, that he was unfairly discharge.  He contends he tried to self refer himself to the ASAP because he recognized he had a problem and his commander refused to allow him to attend the ASAP classes and in fact disenrolled him without his knowledge.  He was told that he did not pass a UA but was never furnished with a copy of the results.  He contends lAW Army Regulation he should have been placed in ASAP immediately and he was not.  He was told he would be allowed to stay in the military and be rehabilitated; instead his NCO constantly berated him and tried to bait him into fights daily.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			13 May 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				10 December 2010
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, Chapter 10 								KFS, RE-4
e. Unit of assignment:				HHD, 607th MP Bn, Fort Hood, TX
f. Current Enlistment Date/Term:		7 April 2009, 3 years and 32 weeks
g. Current Enlistment Service:		1 year, 7 months, 11 days
h. Total Service:				1 year, 7 months, 11 days
i. Time Lost:					19 days 
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		25U10, Sig Supt Sys Spec
m. GT Score:					99
n. Education:					Job Corps Certificate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			NDSM, GWOTSM, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			Yes
u. Prior Board Review:				No





SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 7 April 2009, for a period of 3 years and           32 weeks.  He was 20 years old at the time of entry.  He was serving at Fort Carson, CO, when separation action was initiated against him.  His record documents no acts of valor or significant achievement.  He completed 1 year, 7 months, and 11 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record is void of the complete facts and circumstances concerning the events which led to the discharge from the Army to include the DD Form 458, Charge Sheet and the applicant's request for discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  

2.  However, the record does contain the unit commander and intermediate commander's recommendation, recommending approval of the applicant's discharge under the Chapter 10, AR 635-200, in lieu of trial by court-martial, with a characterization of service of under other than honorable conditions.  

3.  On 19 November 2010, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of UOTHC.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 10 December 2010, with a characterization of service of UOTHC.

5.  The applicant’s record of service indicates 19 days of time lost; 8 days for being AWOL from 5 August 2010 until his return on 13 August 2013; 6 days for being AWOL from                8 September 2010 until his return on 14 September 2010; and 5 days for being AWOL from   29 September 2010 until his return on 5 October 2010.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There is a positive urinalysis report contained in the record coded; IR (Inspection Random), dated 23 March 2010, for D-Methamphetamine.

2.  Seven DA Forms 4187 (Personnel Actions), indicating duty status changes for AWOL, PDTY, and DFR.

3.  A Mental Status Evaluation Report dated 24 August 2010, indicating the applicant had the mental capacity to understand and participate in the proceedings against him and that he was psychiatrically cleared for any administrative action deemed appropriated by his command.



4.  Twenty negative counseling statements dated between 14 August 2010 and 25 October 2010, for leaving his place of duty without permission, disobeying a order or regulation, failure to follow a lawful order, failure to be at his appointed place of duty, disobeying a order from a commissioned officer, failure to report, missing formation, notification of pending discharge under the provision of Chapter 10, AR 635-200.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, two patient intake reports, dated 16 November 2010 and 2 December 2010, and a copy of his DD Form 214 for the period of service under review.

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.  However, after examining the applicant’s military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.




2.  The applicant’s record is void of the complete facts and circumstances concerning the events which led to his discharge from the Army to include his DD Form 458, Charge Sheet and his request for discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  However, the record contains the chain of commands recommendation and approving authority's memorandum.  These documents identify the reason and characterization of the discharge.  Barring evidence to the contrary, it appears 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 he was unfairly discharged and was refused by his commander to seek help for his problem through ASAP.  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 this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unfairly discharged or not allowed to participate in the ASAP.  The applicant’s statement alone does not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.

4.  The applicant also contends his commander was required to immediately enroll him in the ASAP and that he was told he would be allowed to stay in the military and be rehabilitated.  However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.

5.  Additionally, because the complete facts and circumstances leading to the discharge are not contained in the service record.  The burden of proof remains with the former Soldier to provide the appropriate documents such as the discharge packet or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.  If the applicant desires a personal appearance hearing, it will still be his responsibility to meet the burden of proof since the complete discharge packet is not available in the official record. 

6.  Therefore, based on the available evidence and the presumption of government regularity, the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief.








SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review     Date:  13 December 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)		AR20130009321



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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