IN THE CASE OF:  	Mr. 

      BOARD DATE:  	19 May 2014

      CASE NUMBER:  	AR20130014346
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony and considering the examiner’s 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 an upgrade of his under other than honorable conditions discharge to honorable or general, under honorable conditions.

2.  The applicant states, in effect, an upgrade of his discharge would allow him to continue his military career or pursue a career in the federal government.  He contends he was not mentally ready for the military and was too immature for the responsibility it required.  He states he requested to be separated until he was ready to serve his country to his fullest potential. 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			31 July 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				26 April 2011
d. Reason/Authority/SPD/RE Code:		Misconduct (Serious Offense), AR 635-200,
Chapter 14-12c, JKQ, RE-3
e. Unit of assignment:				HHD, 716th Military Police Battalion, Fort
Campbell, KY
f. Current Enlistment Date/Term:		27 August 2008/5 years
g. Current Enlistment Service:		2 years, 2 months, 6 days
h. Total Service:				2 years, 2 months, 6 days
i. Time Lost:					176
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		27D10, Paralegal Specialist
m. GT Score:					111
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			NDSM, GWOTSM, ASR
r. Administrative Separation Board: 		NA
s. Performance Ratings:			NA
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 27 August 2008 for a period of 5 years.  He was 18 years old at the time of entry and a high school graduate.  His record is void of any significant awards and acts of valor.  He completed 2 years, 2 months, 6 days of active duty service.  When his discharge proceedings were initiated, he was serving at Fort Campbell, Kentucky.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record of evidence shows that on 5 January 2011, the applicant was in pretrial confinement due to offenses committed that were punishable by court-martial.  The applicant’s disciplinary history includes accrual of 176 days of time lost for being AWOL for the periods of 100602-100607, 100802-101028, and 101223-110203.  He was confined by civilian authorities for the period of 101029-101108 and confined by military authorities for the period of 110211-110227.

On 3 February 2011, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, for misconduct (serious offense).  Specifically for:

     a.  Being absent without leave (AWOL) from 2 August 2010 until 29 October 2010, and from 2 June 2010 until 8 June 2010.

     b.  Being involved in a domestic violence incident on 26 August 2010.

     c.  Being involved in a simple assault incident on 22 August 2010.

     d.  Being involved in a domestic dispute with his spouse on 3 May 2010.

     e.  Disobeying a lawful order from a commissioned officer x 2 (100324, 100312).

     f.  Being involved in a domestic violence and child neglect incident on 6 March 2010.

2.  Based on the above misconduct, the commander recommended an under other than honorable conditions discharge.  The applicant was advised of his rights.

3.  On 3 February 2011, the applicant acknowledged receipt of the notice to administratively separate him from the military under the provisions of AR 635-200, Chapter 14-12c.  However, the record does not contain any evidence that the applicant consulted with legal counsel, was advised of the impact of discharge action and whether he submitted a statement on his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  

4.  On 9 February 2011, a court-martial charge was preferred against the applicant for violating Articles 130, 121 and 86 of the Uniform Code of Military Justice (UCMJ) based on unlawful entry into a dwelling, stealing property of a value greater than $500, and for being AWOL from 2 June 2010 through 8 June 2010, 2 August 2010 through 29 October 2010, and 13 December 2010 through 3 February 2011.  On 15 February 2011, 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.

5.  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.  There is no evidence in the record that his request was ever approved or disapproved by the separating authority.

6.  On 15 February 2011, the applicant entered an offer to plead guilty to three charges and their specifications, to include an additional charge of wrongfully receiving and concealing stolen property in value of about $500, in violation of Article 134 of the UCMJ; and not guilty to three charges and their specifications.  On 24 February 2011, the applicant’s offer to plead guilty was accepted.
  
7.  On 28 February 2011, the applicant appeared in a summary court-martial trial proceeding and was found guilty of two charges and their specifications, including an additional charge in violation of Articles 134, and 86 of the UCMJ.  He was found not guilty of three charges and their specifications in violation of Articles 130, 121, and 81 of the UCMJ.  The punishment consisted of $904 pay per month for one month, hard labor for 45 days, and restriction for 45 days.  On 4 March 2011, a review of the applicant’s summary court-martial was conducted.  An error was found in that the applicant spent a total of 24 days in pretrial confinement, however, he was order to 45 days of restriction.  Counsel recommended the DD Form 2329 (Record of Trial by Summary Court-Martial), be corrected and the 45 days of restriction be removed.

8.  On 8 March 2011, the convening authority approved the sentence of nine days hard labor without confinement and forfeiture of $904 pay per month for one month.

9.  On 22 March 2011, the applicant’s brigade commander reviewed the proposed separation action and recommended approval with an under other than honorable conditions discharge.  

10.  On 31 March 2011, the separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  

11.  The applicant was separated on 26 April 2011, under Army Regulation 635-200, Chapter 14-12c, with an under other than honorable conditions discharge, an SPD code of JKQ, and an RE code of 3.  

12.  The applicant's record shows he was AWOL during the periods 100602-100607, 100802-101028, and 101223-110203.  He surrendered and returned to military control.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Military Police (MP) Report dated 3 August 2010, 26 August 2010, and 
22 November 2010, that indicates the applicant was the subject of an investigation for being AWOL, committing domestic assault, receiving stolen property (on post), burglary of a barracks (on post), housebreaking-of a barracks (on post) and conspiracy (on post). 

2.  A court-martial charges transmittal form, dated 24 February 2011, recommending the applicant for trial by summary court-martial.

3.  DA Form 458 (Charge Sheet), dated 15 February 2011, indicating the applicant was charged with violation of Article 134 of the UCMJ on 16 November 2010, for wrongfully receiving and concealing a stolen Nintendo DSI and 12 Nintendo DSI games, the property of SPC J.

4.  DA Form 458, dated 9 February 2011, indicating the applicant was charged with violation of Articles 130, 121, 86, 81, and 134 of the UCMJ; for unlawfully entering a dwelling, stealing a Nintendo DSI and 12 Nintendo DSI games; being AWOL from 2 June 2010 through 
8 June 2010, 13 December 2010 through 3 February 2011, and from 2 August 2010, until his apprehension on 29 October 2010, and conspiracy to steal the master key to the barracks building, and wrongfully concealing a serious offense.

5.  An arrest report dated 6 March 2010, indicating the applicant was arrested for domestic assault and child neglect.  

6.  Article 15, dated 9 June 2010, failing to go at the time prescribed to his appointed place of duty x 2 (100222 and 100225) and disobeying a lawful order by a commissioned officer x 2 (100312 and 100324).  The punishment consisted of reduction to the grade of E-1, forfeiture of $250 per month for two months (suspended) to be automatically remitted if not vacated before 7 September 2010, 30 days of extra duty and restriction, and a oral reprimand (FG). 

7.  DA Form 7570 (Investigator Data Form), dated 15 December 2010, reflect the applicant was the subject of an investigation for committing the offenses of housebreaking of a barracks, conspiracy, and receiving stolen property.  The report indicated the stolen property of another Soldier was found in the applicant’s room.

8.  A memorandum, dated 10 March 2011, reflecting a request to add supplemental information for the applicant’s administrative separation packet to include his summary court-martial documentation.

9.  DA Form 4430 (DA Report of Result of Trial), dated 28 February 2011, indicates the applicant was found not guilty of three charges and their specifications and found guilty of two charges and their specifications, to include an additional charge.  
10.  DA Form 2329 (Record of Trial by Summary Court-Martial), dated 28 February 2011, indicates the applicant waived his right to a seven day wait before action by the convening authority.  The applicant was found not guilty of three charges and their specifications and found guilty of two charges and their specifications, to include an additional charge.  

11.  MEDCOM Form 4038 (Report of Behavioral Health Evaluation), dated 1 December 2010, indicating the applicant had a clear thought process and was mentally responsible.

12.  Four negative counseling statements dated between 15 March 2010 and 4 May 2010, for disobeying a direct order x 2 (100315), guidelines for no contact with family and revocation of off post privileges, and apprehension for simple assault.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 29 July 2013, and a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant did not provide any in support of his application.

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general, under honorable conditions or an honorable discharge may be granted.   

2.  Army Regulation 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

3.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.


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, his military records, and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The record confirms that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  It brought discredit on the Army, and was prejudicial to good order and discipline.  Based on the misconduct, the applicant diminished the quality of his service below that meriting a general or a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for multiple violations of the UCMJ, a summary court-martial, and four negative counseling statements.  

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  

4.  The applicant contends that he was young and immature at the time of the discharge.  The record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  The applicant requests a change to the characterization of his service in order to rejoin the Army and better his employment opportunities.  However, at the time of discharge, the applicant received an under other than honorable conditions characterization of service.  Army Regulation 601-280 stipulates that an under other than honorable conditions discharge constitutes a non-waivable disqualification, thus the applicant is no longer eligible for reenlistment.  Further, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

6.  The records show the proper discharge and separation authority procedures were followed in this case. 

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









SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance     Date: 19 May 2014       Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel:  None

Witnesses/Observers:  None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted no additional documents or additional contentions.

2.  In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing.

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)		AR20130014346



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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