IN THE CASE OF:  	Mr. 

      BOARD DATE:  	2 October 2013

      CASE NUMBER:  	AR20130012757
___________________________________________________________________________

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 served for 2 years and 8 months of a 3-year contract and was unjustly discharged without due process for being AWOL and having an altercation with an officer.  He was shot with an M-203 round during the war and was having severe family problems.  After the war he was denied leave and went AWOL for 4 months.  Upon returning he failed a urinalysis and now would like to challenge the chain of custody.  During his Article 15 process he got into an altercation with a lieutenant and was jailed for a month.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			3 July 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				12 January 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:				A Btry, 1st Bn, 41st FA Rgt, Fort Stewart, GA	
f. Current Enlistment Date/Term:		30 July 2002, 3 years
g. Current Enlistment Service:		2 years, 4 months, 2 days
h. Total Service:				2 years, 4 months, 2 days
i. Time Lost:					40 days
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		13B10, Cannon Crewmember
m. GT Score:					91
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Iraq (as described in ARCOM)
q. Decorations/Awards:			ARCOM, NDSM, GWTSM, ASR, PUC
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 Regular Army on 30 July 2002, for a period of 3 years.  He was 20 years old at the time and was a high school graduate.  He was serving at Fort Stewart, GA, when his discharge proceedings were initiated.  His record shows he received an ARCOM which is in his AMHRR but not listed on his DD Form 214.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 1 December 2004, the applicant was charged with the following offenses:

      a. AWOL (040908-041007)
      b. AWOL (041118-041130)
      c. Wrongful use of marijuana (040709-040809)
      d. Wrongful use of cocaine (041012-041015)

2.  On 2 December 2004, 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.  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 and intermediate commanders recommended approval of an under other than honorable conditions discharge.  

3.  On 13 December 2004, 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 12 January 2005, with a characterization of service of under other than honorable conditions.

5.  The applicant’s record of service shows 2 periods of AWOL for a total of 40 days.  The first one for 28 days (040908-041006), he surrendered.  The second period of AWOL for 12 days (041118-041129), the mode of return is unknown.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains a positive urinalysis for cocaine dated 15 October 2004, which was coded IR (Inspection Random).  

2.  A second positive urinalysis for marijuana dated 9 August 2004, coded as IU (Inspection Unit).

3.  Two negative counseling statements dated 23 August 2004 and 13 December 2004, for wrongful use and possession of a controlled substance and for a positive urinalysis.

EVIDENCE SUBMITTED BY THE APPLICANT: 

Medical documents (42 pages), a DD Form 149, and his son’s birth certificate.


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 his characterization of service was carefully considered.  

2.  The evidence of record confirms the applicant was charged with the commission of several offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge 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 UOTHC discharge the applicant received 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 at the time of discharge and it does not support an upgrade to an honorable or a general discharge at this late date.  

4.  The applicant contends that he had good service which included his combat service.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of serious misconduct of being AWOL and abusing illegal drugs.  

5.  The applicant also contends that his discharge was inequitable because he was having family problems and decided to go home to help.  However, he had many legitimate avenues through which to obtain assistance or relief 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.  The applicant had the opportunity to submit a statement explaining the reasons for going AWOL and using illegal drugs but the record shows he chose not to do so.

6.  Although the applicant alleges he did not have due process, the record indicates that on     2 December 2004, he consulted with a member of trial defense services who advised him about his options.  Based on this advice, he voluntarily requested to be administratively discharged from the Army instead of going to court-martial trial.  Moreover, 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.  

7.  The applicant states that he wants to challenge the chain of custody for the urinalyses he was given in 2004.  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 there was anything wrong with the chain of custody or that he was unjustly discriminated.  In fact, the applicant’s two positive urinalyses were properly coded and administered on a random basis.  The applicant’s statements alone do 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.   

8.  The supporting documents with the application indicate the applicant was diagnosed with Post-Traumatic Stress Disorder (PTSD).  However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted.  There are many Soldiers with the same condition that completed their service successfully.

9.  Therefore, the reason for 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:  2 October 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)		AR20130012757

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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