IN THE CASE OF:	Mr. 

      BOARD DATE:	4 June 2014

      CASE NUMBER:	AR20130016233
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review 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 to upgrade the characterization of his service from under other than honorable to general, under honorable conditions or an uncharacterized service, and to upgrade the reentry code.

2.  The applicant states, in effect, he seeks an upgrade to allow enlistment into the Army
National Guard.  

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	30 August 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	26 February 2003
	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:	E Co, 2nd Bn, 54th Infantry, Fort Benning, GA
	f.	Current Enlistment Date/Term:	18 September 1998, 2 years, 16 weeks (block 12a 
			on the applicant’s DD Form 214 is incorrect; his 
			enlistment contract indicates 18 September 1998)
	g.	Current Enlistment Service:	0 years, 6 months, 24 days
	h.	Total Service:	0 years, 6 months, 24 days
	i.	Time Lost:	1,370 days
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-2
	l.	Military Occupational Specialty:	None
	m.	GT Score:	100
	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:	No
	u.	Prior Board Review:	No



SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 18 September 1998, for a period of 2 years, 16 weeks.  He was 18 years old and a high school graduate.  His record documents no acts of valor or significant achievement.  He completed 6 months and 24 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 1,370 days of time lost for being AWOL from 15 February 1999, until his apprehension on 15 November 2002.

2.  On 26 November 2002, a court-martial charge was preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) based on the AWOL offense outlined in the preceding paragraph.  On 27 November 2002, 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.  The applicant confirmed he had no desire to perform further military service and did not submit a statement in his own behalf.  

4.  On 31 January 2003, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued a UOTHC Discharge Certificate.  

5.  On 26 February 2003, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty), he was issued shows he completed 6 months and 24 days of creditable active military service and accrued 1,370 days of time lost due to being AWOL.  The applicant was apprehended by civil authorities and returned to military control.  The record also indicates 92 days of excess leave (from 27 November 2002 to 26 February 2003).



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A charge sheet with information outlined at paragraph 1 above.

2.  Personnel actions indicating the applicant’s duty status changed from AWOL, to DFR, to apprehension by civil authorities, to present for duty.

3.  A personnel action, dated 17 March 1999, indicates the applicant’s status changed from AWOL to DFR, effective 17 March 1999, 0800 hours. 

4.  A report of return of absentee, dated 15 November 2002, indicates the applicant was returned to present for duty.

5.  There are no negative counseling statements or actions under the Uniform Code of Military Justice.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a Master of Science degree certificate, dated 13 May 2011.

POST-SERVICE ACTIVITY: 

The applicant states, in effect, since his discharge he continued his education to achieve a bachelor of science and a master in administration.  He submitted a certificate indicating he was awarded a Master of Science degree in Educational Administration.  

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 his characterization and a change to the reentry code 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 or a change to the reentry code.

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 record confirms the applicant was in entry-level status when he went AWOL.  A Soldier is in entry-level status (ELS) for the first 180 days of continuous active duty.  The purpose of the entry-level status is to provide the Soldier a probationary period.  Army Regulation 635-200 also provides, except in cases of serious misconduct, that a Soldier’s service will be uncharacterized when his separation is initiated while the Soldier is in entry level status.  However, because of the serious misconduct of being AWOL, the under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  Further, an honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.  The applicant’s record indicates that no such unusual circumstances were present and his service did not warrant an honorable discharge.  

4.  Although the applicant indicates he was not aware that the Red Cross could assist during the period his house received flood damage, and receiving no help from his commander or NCO, he left, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  Moreover, records show the applicant's assigned RE Code of 4 is appropriate based on the authority and reason for his discharge.  Therefore, there is no basis for changing the applicant's RE Code and the applicant is no longer eligible for reenlistment. 

5.  Furthermore, the applicant contends that since leaving the Army, he continued his education and achieved a Master of Science degree in Educational Administration, and for the last five years, he has been employed as a hospital administrator for a highly respected medical facility.  The applicant’s post-service accomplishments have been noted as outlined on the application and in the document with the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  

6.  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.

7.  Therefore, the reason 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:  4 June 2014      Location:  Washington, DC

Did the Applicant Testify?  No 

Counsel:  None

Witnesses/Observers:  No 

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)		AR20130016233

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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