IN THE CASE OF:  	Mr. 

      BOARD DATE:  	4 April 2014

      CASE NUMBER:  	AR20130011812
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing her testimony 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 general, under honorable conditions.

2.  The applicant states, in effect, he was denied his right to an open door policy, to speak to his 1SG by force from his SSG.  He grabbed him by the throat when he tried to go the 1SG.  He was denied the right to speak with a UCMJ attorney after that; so he stopped following orders so he could speak to an attorney.  He was handcuffed and shackled for five days and then sent to a freezing cell with no clothes or blankets for warmth.  He was told if he wanted out, he needed to drop the charges from his attorney so he agreed to a chapter 10.  He served his country and need his education benefits that he paid for.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			21 June 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				2 March 2005
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:				Troop A, 5th Battalion, 7th Cavalry Regiment,
1-3rd Brigade Combat Team, Fort Stewart, GA
f. Enlistment Date/Term:			8 October 2002, 3 years
g. Current Enlistment Service:		2 years, 4 month, 25 days
h. Total Service:				2 years, 4 months, 25 days
i. Time Lost:					None
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		14R10, LOS-F-H Crewmember
m. GT Score:					115
n. Education:					HS Graduate
o. Overseas Service:				Korea (030331-030616), Southwest Asia
p. Combat Service:				Kuwait/Iraq (030617-040420)
q. Decorations/Awards:			NDSM, KDSM, GWOTSM, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No




SUMMARY OF SERVICE:

The record shows the applicant enlisted in Regular Army on 8 October 2002, for a period of 3 years.  He was 19 years old at the time and a high school graduate.  Also, he required a moral waiver at the time of enlistment which was approved on 29 July 2002.  He was trained in and awarded military occupational specialty (MOS) 14R10 LOS-F-H Crewmember.  He served in Korea, Camp Arifjan, Kuwait and Iraq.  His record documents no acts of valor or significant achievement.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s record is void of the complete facts and circumstances (i.e., request for discharge in lieu of trial by court-martial, chain of commands recommendation) concerning the events which led to the discharge from the Army.  However, the following documents show that on 24 January 2005, DA Form 4700 (Medical Record-Supplement Medical Data), entitled Mental Health Intake Interview shows the applicant’s offenses as follows: Article 86 x 2, abandoning guard duty; Article 90 x 2, disobeying a direct order from a commissioned officer; Article 91 x 4, assaulting an NCO, disobeying an NCO, and Article 112a, wrongfully using marijuana.  

2.  The applicant was placed in pre-trial confinement from 21 January 2005-16 February 2005, and was released from pre-trial confinement while in Iraq.  

3.  The record contains a memorandum for the Separation Transition Point; Fort Stewart, GA which shows that on 10 February 2005, the separation authority approved the Chapter 10 request and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank.

4.  On 22 February 2005, the trial counsel, Office of the Staff Judge Advocate reviewed the request for discharge in lieu of trial by court-martial in accordance with AR 635-200, Chapter 10, and determined it to be legally sufficient.  

5.  The record further contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  

6.  The DD Form 214 indicates on 2 March 2005, 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 (i.e., in lieu of trial by court-martial) with a reentry eligibility (RE) code of 4.

7.  On 2 March 2005, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 2 years, 4 month, and 
25 days of creditable active military service. 


EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There are no negative counseling’s or actions under the Uniform Code of Military Justice (i.e., Articles 15, Courts-martial) in the available record.  

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 293 dated 18 June 2013.

POST-SERVICE ACTIVITY: 

The applicant did not provide any 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 characterization was carefully considered.  However, after examining the applicant’s available 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 several offenses punishable under the UCMJ with a punitive discharge and placed in pre-trial confinement.  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's contentions were carefully considered.  However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service.  Moreover, there is a presumption of regularity in the conduct of governmental affairs.  This presumption is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted.  The applicant’s statements alone do not overcome the presumption of government regularity in this case and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge.  

5.  If the applicant desires a personal appearance, it is his responsibility to meet the burden of proof since the evidence is not available in the official record.  The applicant will need to provide the appropriate documents or other evidence (i.e., complete discharge packet) sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.

6.  The applicant contends he wants to use the education benefits that he paid for.  Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

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















SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Record Review      Date:  4 April 2014       Location:  Washington, DC

Did the Applicant Testify?  NA

Counsel:  None

Witnesses/Observers:  NA

Board Vote:  
Character Change:  1	No Change:  4
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)		AR20130011812

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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