IN THE CASE OF:	Mr. 

      BOARD DATE:	24 February 2014

      CASE NUMBER:	AR20130014304
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the length and quality of the applicant’s service, to include his five combat tours and awards received in service.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable conditions.  However, the Board determined the reason for discharge was both proper and equitable and voted not to change it.  This action entitles restoration of grade/rank 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 to upgrade the characterization of his service from under other than honorable to fully honorable.

2.  The applicant states, in pertinent part and in effect, that the Board must take into account his entire service to his country, to allow him the opportunity to excel as a civilian with as little stigma as possible.  He always tried to set an example and lead by example.  He expresses how sorry he is to find himself in this situation.  He tried placing Soldiers first and completing the mission to the best of his abilities, and understands in a leadership role, he is personally responsible for his and the actions of his Soldiers.  He humbly requests for clemency in light of his eleven years of service when he continually placed the Army ahead of his family, five deployments, and the sacrifices made by his family.  Leaving the Army and the job he loves so much in this matter is heartbreaking.  However, the feeling of heartbreak and shame is nothing compared to the fear he has of not being able to provide for his family.  He is the sole provider for his family, and the loss of benefits and a UOTH discharge would be crushing.  Knowing that the command feels he was derelict in his duties is a pain that he cannot escape.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	7 August 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	24 April 2013
	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:	396th Transportation Company, 157th Combat 
			Sustainment Support Bn, 1st Sustainment Bde
			Task Force Durable, Bagram Airfield, Afghanistan
	f.	Current Enlistment Date/Term:	1 October 2012, indefinite
	g.	Current Enlistment Service:	6 months, 24 days
	h.	Total Service:	11 years, 28 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (020327-050412)/HD
			RA (050413-071210)/HD
			RA (071211-120930)/HD
	k.	Highest Grade Achieved:	E-6
	l.	Military Occupational Specialty:	88M10, Motor Transport Operator
	m.	GT Score:	96
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Afghanistan (120808-130507), Iraq x 4 (090808-
			100802, 070514-080307, 050116-051231, 030208-
			040117)
	q.	Decorations/Awards:	ARCOM-5; AAM-3; AGCM-4; NDSM; ACM-2CS 
			ICM-CS-6; GWOTEM; GWOTSM; NPDR-3; ASR 
			OSR-5; NATO MDL; CAB; MUC; USA/USAF PUC
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	Yes
	t.	Counseling Statements:	No
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 27 March 2002, and reenlisted three times.  The latter reenlistment was on 1 October 2012, for an indefinite period.  He was 19 years old at the time of entry and a high school graduate.  He served in Afghanistan and Iraq.  He earned five ARCOMs and three AAM awards.  He completed 11 years and 28 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 13 March 2013, the applicant was charged with the following offenses:

	a.	being derelict in the performance of his duties on three separate occasions (130131 x 2 and 121230-130131)
	b.	condoning the misconduct of the Soldiers in his convoy escort team (121230-130131)

2.  On 19 March 2013, 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.  

4.  In the aforementioned request, the applicant also indicated he understands that he is eligible for an administrative separation hearing prior to his separation from military service, and voluntarily waived consideration of his case before a board regardless of the characterization of service he would receive if the chapter 10 request was accepted, and submitted a statement in his own behalf.  The unit and intermediate commanders recommended approval of an under other than honorable conditions discharge.  

5.  On 27 March 2013, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued an under other than honorable conditions discharge certificate.  

6.  The applicant was separated on 24 April 2013, under Army Regulation 635-200, Chapter 10, with an under other than honorable conditions discharge, an SPD code of KFS, and an RE code of 4.

7.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Charge Sheet with two charges preferred on 13 March 2013.

2.  The record reflects one NCOER covering the period of 1 January 2012 to 30 December 2012, as an “Annual” report that was rendered during the period under review.  The applicant was rated as “Among the Best” and received 1/1 from the senior rater.  

3.  There are no negative counseling’s or actions under the Uniform Code of Military Justice.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an ERB; five letters of support, dated 18 and 20 March 2013; and Soldier Achievement packet containing NATO Medal certificate; three ARCOM certificates; three AAM certificates; AGCM certificate; three AGCM orders; CAB orders; five certificates of achievement; NCO Academy certificate of achievement; seven certificates of training; advanced leaders and senior leader course diplomas; course completion certificate; record fire scorecard; memorandum of commendation; WLC diploma; certificate of appreciation; basic training certificate; and nine NCOERs; and five DD Forms 1059, Service School Academic Evaluation Reports.

POST-SERVICE ACTIVITY: 

The applicant provided none.  

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 was carefully considered.  However, after examining the applicant’s record of service, and the issues and documents 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 offenses 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 applicant requests to consider his entire service to his country, which includes eleven years of service by placing the Army ahead of his family, five deployments, and the sacrifices made by his family.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceedings 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 court-martial charges that were filed against him.  The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  

4.  The applicant contends that as the sole provider for his family and the loss of benefits with an under other than honorable conditions discharge would be crushing, perhaps indicating that an upgrade of his discharge would allow educational benefits through the use of the GI Bill.  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.

5.  The applicant contends that an upgrade of his discharge will allow him the opportunity to excel as a civilian with as little stigma as possible.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

6.  Therefore, the reason for the 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: Record Review       Date: 24 February 2014      Location: Washington, DC

Did the Applicant Testify?  No

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:	Honorable
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		E-5/SGT
Other:  




















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)		AR20130014304

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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