IN THE CASE OF:	Mr.

      BOARD DATE:	16 August 2014

      CASE NUMBER:	AR20130013088
___________________________________________________________________________

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 the characterization of his service from under other than honorable to honorable.

2.  The applicant states, in effect, he sustained a shoulder injury while in OUST at Fort Benning, GA.  When he returned from a 30-day home/medical leave, he was informed that he was unable to qualify for airborne or air assault school.  He asked the medical staff to give him a discharge.  He left without notifying the proper chain of command.  He still has severe shoulder pain and other issues related to the injury.  He would like to be eligible to receive medical benefits and possible compensation.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	16 July 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	21 January 2004
	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:	CO E, 2nd Bn, 58th IN, Fort Benning, GA
	f.	Current Enlistment Date/Term:	26 February 2003, 3 years
	g.	Current Enlistment Service:	3 months, 21 days
	h.	Total Service:	3 months, 21 days
	i.	Time Lost:	215 days
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-1
	l.	Military Occupational Specialty:	None
	m.	GT Score:	108
	n.	Education:	HS Graduate
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	None
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	None
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 26 February 2003, for a period of 3 years.  He was 20 years old at the time of entry and a high school graduate.  His record documents no acts of valor or significant achievement.  He completed 3 months and 21days of active duty service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 125 days of time lost for being AWOL from 3 June 2003 to 22 August 2003, and AWOL from 13 November 2003, until he surrendered to military authorities on 5 January 2004.  

2.  On 12 January 2004, a court-martial charge was preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) based on the AWOL offense outlined in the preceding paragraph.  On 12 January 2004, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and of the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

3.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge.  He also confirmed his understanding that if his request for discharge was approved, he could receive an under other than honorable conditions discharge.  He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.  The applicant confirmed he had no desire to perform further military service and did not submit a statement in his own behalf.  

4.  On 14 January 2004, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued a UOTHC Discharge Certificate.  

5.  On 21 January 2004, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 3 months and 21 days of creditable active military service and accrued 215 days of time lost due to being AWOL and confinement by civilian authorities.  The inclusive dates of his lost time are: being AWOL from 3 June 2003 to 22 August 2003; being in civilian confinement from 23 August 2003 to 12 November 2003; and AWOL from 13 November 2003, until he surrendered to military authorities on 5 January 2004.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Orders 9-1, dated 9 January 2004, indicate the applicant assignment to SPC, USAPCF, US Army Armor Center and Fort Knox with additional instructions that he was apprehended by civil authorities (030822) in South Carolina for a civilian charge of obtaining control substance by fraud, and that he was confined in the county jail pending disposition a of charge.  Further, that he was transferred to a treatment center (031017). 

2.  ATZK-PM Form 4939, Characterization of Service Checklist for Administrative Discharge Actions, dated 14 January 2004, in pertinent part, indicates the record of the applicant’s time lost as follows:

	a.	AWOL from 3 June 2003 through 21 August 2003;
	b.	CCA (Confined by Civilian Authorities) from 23 August 2003 through 12 November 2003; and
	c.	AWOL from 13 November 2003 through 4 January 2004.

3.  A Charge Sheet indicates a charge with two specifications of AWOL (030603-030822) and (031123-040105) was preferred to trial involving the applicant on 12 January 2004. 

4.  DA Form 4187, Personnel Action, dated 9 January 2004, indicates the applicant’s status from AWOL to PDY, effective 5 January 2004, and that he surrendered to military authorities on 5 January 2004.

5.  DA Form 4187, Personnel Action, dated 9 January 2004, indicates the applicant’s status from CCA to AWOL, effective 13 November 2003, and that he had completed treatment and was released from the treatment center, and failed to return to military control.

6.  DA Form 4187, Personnel Action, dated 8 July 2003, indicates the applicant’s status from AWOL to DFR, effective 3 July 2003.

7.  DA Form 4187, Personnel Action, dated 3 June 2003, indicates the applicant’s status from PDY to AWOL, effective 3 June 2003.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none.

POST-SERVICE ACTIVITY: 

The applicant provided none.  

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 his characterization 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 being informed he would not be able to qualify for airborne or air assault school contributed to him leaving without notifying his chain of command.  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.  Moreover, the service record does not support the applicant’s contention relating to his medical issues, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition.  Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication.  

5.  The applicant has expressed a desire to received medical benefits and compensation.  However, 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.

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:  16 April 2014       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)		AR20130013088

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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