IN THE CASE OF:	Mr. 

      BOARD DATE:	28 April 2014

      CASE NUMBER:	AR20130014327
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Analyst’s Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service to include his combat service and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the reason for discharge was proper and equitable and voted not to change it.  This action entails restoration of grade to E-4/SPC.




      
      
      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 effect, he believes he was misjudged.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	5 August 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	9 February 2012
	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:	G Co, 3/319th Airborne Field Artillery Regiment, 
			1BCT, 82nd Airborne Division (Rear) (Provisional), 
			Fort Bragg, NC
	f.	Current Enlistment Date/Term:	23 September 2008, 4 years
	g.	Current Enlistment Service:	3 years, 4 months, 17 days
	h.	Total Service:	3 years, 4 months, 17 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	92A1P, Automated Logistical Specialist 
	m.	GT Score:	92
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (090815-100730)
	q.	Decorations/Awards:	ARCOM; ICM-CS; GWOTSM; OSR
	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 23 September 2008, for a period of 4 years.  He was 26 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 92A1P, Automated Logistical Specialist.  He served in Iraq.  He earned an ARCOM.  He completed 3 years, 4 months, and 17 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record does not contain a DD Form 458, Charge Sheet which would reflect the charges and its specification that were preferred and referred to trial by a court-martial.  However, there is an Article 15 in the record that lists the following charges and specification:

	a.	violation of Article 86, UCMJ, for leaving his appointed place of duty without authority (110730);
	b.	violation of Article 91, for disobeying his 1SG (110730); and 
	c.	violation of Article 92, for being derelict in the performance of his duties (110730).  

The Article 15 also indicates that upon the applicant’s demand for trial by court-martial, the proceedings were abated pending trial by court-martial.

2.  On 10 January 2012, 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 indicate whether he would submit a statement on his own behalf.  The unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge.  

3.  On 12 January 2012, 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 9 February 2012, with a characterization of service of under other than honorable conditions.

5.  The applicant’s record of service does not show any record of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Memorandum, dated 6 January 2012, subject: Advice on Disposition of Court-Martial Charges in the case of the U.S. v [the applicant], rendered by the servicing staff judge advocate, indicates the preferred charges and their specifications were preferred on 19 October 2011 and referred to trial by a special court-martial.  The actual charge sheet is not available in the records.

2.  Company Grade Article 15, dated 19 August 2011, for leaving his appointed place of duty without authority (110730), disobeying his 1SG (110730), and being derelict in the performance of his duties (110730).  The applicant demanded trial by court-martial and the proceedings were abated pending trial by court-martial. 

3.  A negative counseling statement, dated 5 August 2011, for leaving his appointed place of duty without authority and failing to follow the 1SG’s instructions.

4.  Memorandum for Record, dated 27 October 2011, subject:  Summary Court-Martial for [the applicant], rendered by the summary court-martial officer, indicates that when the applicant was advised of his rights, the applicant elected to have his case heard by a special court-martial. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided DD Form 214 for service under current review with his application.

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.  

ANALYST’S 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 record of service, the issue and document 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.  The documented acts of any significant achievement or valor 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 the discharge was unjust because he believes he was misjudged.  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 his issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he may have been unjustly discriminated.  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.

5.  Therefore, the reason and characterization of service being both proper and equitable, recommend the Board deny relief.

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the preceding Analyst’s Discussion and Recommendation, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service to include his combat service and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the reason for discharge was proper and equitable and voted not to change it.  This action entails restoration of grade to E-4/SPC.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review         Date:  28 April 2014         Location: Washington, DC

Did the Applicant Testify?  No

Counsel:  None

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:	General, Under Honorable Conditions
Change Reason to:			NA
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		SPC/E-4
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)		AR20130014327

Page 5 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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