IN THE CASE OF:  	Mr. 

      BOARD DATE:  	28 April 2014

      CASE NUMBER:  	AR20130014959
___________________________________________________________________________

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 his under other than honorable conditions discharge be upgraded to general, under honorable conditions.

2.  The applicant states, in effect, that his discharge was inequitable because it was based upon one isolated incident in 33 months of service with no other adverse actions.  He was not given many options at his time of enlistment.  He would like to reenlist and finish what he started.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			13 August 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				6 February 2002
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, AR 635-200, 							Chapter 10, KFS, RE-3
e. Unit of assignment:				C Company, 1/24th Infantry, Fort Lewis, WA
f. Enlistment Date/Term:			RA,16 October 2000, 3 years
g. Current Enlistment Service:		1 year, 1 month, 1 day
h. Total Service:				5 years, 4 months, 17 days
i. Time Lost:					79 days
j. Previous Discharges:			USAR (960819-961118), NA									RA (961119-990221), NIF										ADT (990222-990610), HD										ARNG (990611-001015), NA									(Concurrent Service)				
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		11B10, Infantryman
m. GT Score:					NIF
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 22 February 1999, for a period of 4 years.  He was 21 years old and had a high school graduate.  He joined the ARNG on 22 February 1999 for 4 years.  He reenlisted in the Regular Army on 16 October 2000.  The applicant’s record shows he served for a total of 5 years,2 months, and 27 days of active and inactive military service.  The record documents no acts of valor or significant achievements.   
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 79 days of time lost for being AWOL, between 2 March 2001 through 20 May 2001.  He surrendered at Fort Knox, KY, after being AWOL for 79 days.

2.  On 31 May 2001, court-martial charges was preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) specifically for being AWOL between 2 March 2001 and 21 May 2001.  

3.  On 31 May 2001, 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 in lieu of trial by court-martial.

4.  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 indicated he would not submit a statement in his own behalf.   

5. On 25 January 2002, 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.  On 6 February 2002, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed a total of 5 years, 4 months, and 17 days of creditable active military service and accrued 79 days of time lost due to being AWOL.  The applicant was placed on excess leave from 1 June 2001 through 6 February 2002, for a total of 251 days.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

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

2.  Two DA Forms 4187, dated 2 March 2001 and 3 April 2001, showing the applicant was reported AWOL and dropped from roll.  The record also has a DD Form 616 (Report of Return of Absentee), dated 21 May 2001.

3.  A DA Form 458 (Charge Sheet), showing the applicant was charged with AWOL from 2 March 2001 through 21 May 2001.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a copy of his DD Form 214.  

POST-SERVICE ACTIVITY: 

None provided with the application.  

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 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, 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 offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge 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 contends the event that caused his discharge from the Army was an isolated incident.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  

4.  The applicant contends that the length of his honorable service (33 months) outweighs his adverse actions that caused his discharge from the Army.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding 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. 

5.  The applicant desires to rejoin the Military Service.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 

6.  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The character of the applicant’s discharge is commensurate with his overall service record.  

7.  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:  Records Review       Date:  28 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)		AR20130014959



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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