IN THE CASE OF:  	Mr. 

      BOARD DATE:  	11 April 2014

      CASE NUMBER:  	AR20130014557
___________________________________________________________________________

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 applicant’s length and quality of 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.



      
      
      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 a general, under honorable conditions.

2.  The applicant states, in effect, he deeply and sincerely apologizes for his actions and understands that his actions were juvenile and he handled his situation the wrong way at the time.  The applicant did not state any issues of propriety or equity for the Board to consider.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			6 August 2013
b. Discharge Received:			Under Other Than Honorable Conditions 
c. Date of Discharge:				20 December 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:				396th Transportation Company, Camp Taji, 
Iraq
f. Current Enlistment Date/Term:		27 March 2002/3 years
g. Current Enlistment Service:		3 years 8 months, 24 days
h. Total Service:				6 years, 5 months, 28 days
i. Time Lost:					None
j. Previous Discharges:			ARNG, (990624-020326), HD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		88M10, Motor Transport Operator
m. GT Score:					90
n. Education:					HS Graduate
o. Overseas Service:				SWA, Kuwait
p. Combat Service:				Kuwait, (030218-040115)
Iraq, (050118-051201)
q. Decorations/Awards:			NDSM, ASR, CAB, GWOTSM, GWOTEM,
ICM
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 March 2002, for a period of 3 years.  He was 20 years old at the time of entry and a high school graduate.  He served in Iraq and Kuwait and earned a Combat Action Badge (CAB).  He completed 6 years, 5 months, and 28 days of creditable military service.  When his discharge proceedings were initiated, he was serving at Fort Stewart, Georgia.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 
26 October 2005, the applicant was charged with dereliction in the performance of his duties in that he willfully refused to go on his assigned mission to Camp Arifjan, Kuwait for retrograde detail.

2.  On 31 October 2005, 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 own behalf.  The unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge.  

3.  On 8 November 2005, 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 20 December 2005, 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.  DA Form 458 (Charge Sheet), dated 26 October 2005, reflects the applicant was charged with violating Article 92, of the UCMJ, for dereliction in the performance of his duties on 16 September 2005.

2.  A memorandum, dated 26 October 2005, reflects the applicant’s unit commander recommended the applicant’s charges be referred to a special court-martial empowered to adjudge a bad conduct discharge.  The applicant’s intermediate commanders concurred with the recommendation.

3.  A negative counseling statement, dated 17 September 2005, for missing movement.

4.  Article 15, dated 22 April 2004, for wrongfully using marijuana.  The punishment consisted of reduction to the grade of E-2, forfeiture of $665 per month for two months, any amount in the excess of $665 pay for one month is suspended, to be automatically remitted if not vacated before 22 June 2004, 30 days restriction, and 45 days of extra duty (FG).
5.  Article 15, dated 30 March 2005, for wrongfully using marijuana.  The punishment consisted of reduction to the grade of E-1, forfeiture of $617 per month for two months, and 45 days of extra duty (FG). 

6.  DA Form 4960 (Army Commendation Medal), dated 16 July 2003, for meritorious achievement.

7.  Permanent Orders Number 267-02, dated 24 September 2005, announcing award of the CAB.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 1 August 2013, a statement, dated 16 December 2005, reflecting Veteran’s Educational Benefits counseling, 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 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 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 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 did not make any contentions with his application for upgrade of the characterization of his 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 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 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.

























SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review	  Date:  11 April 2014        Location: Washington, DC

Did the Applicant Testify?  NA

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:	General, Under Honorable Conditions
Change Reason to:			NA
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)		AR20130014557



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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