IN THE CASE OF:  Mr. 

      BOARD DATE:  	1 July 2014

      CASE NUMBER:  	AR20130017174
___________________________________________________________________________

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 an upgrade of his discharge from under other than honorable conditions to general, under honorable conditions.

2.  The applicant states, in effect, he first injured his knees during basic training and a doctor recommended that he be discharged from military service as a result of the injury.  He believed he was not being cared for as was needed despite his efforts to get treatment; the Army did not care about him or his well being and he needed proper treatment for his problem.  He made a poor decision by going AWOL to return home for treatment.  He needs an upgrade to get treatment through the VA.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		16 September 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			2 August 2004
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, Chapter 14, paragraph 						14-12c, JKQ, RE-3
e. Unit of assignment:			1-23rd, Infantry Regiment (Rear) (Provisional), 3rd 						Brigade, Fort Lewis, WA
f. Current Enlistment Date/Term:	30 January 2003, 3 years
g. Current Enlistment Service:	1 year, 10 months
h. Total Service:			1 year, 10 months
i. Lost time:				173 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				104
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, ASR
r. Administrative Separation Board:	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant's record shows he enlisted in the Regular Army on 30 January 2003 for a period of 3 years.  He was 19 years old at the time of entry and a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman.  His record does not show that he served in combat, and that he earned any awards for acts of valor or meritorious achievements.  He was serving at Fort Lewis, WA when his discharge was initiated.


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 15 June 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct-commission of a serious offense, for being absent without leave (AWOL) (031104-040424).

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

3.  On 16 June 2004, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board, contingent upon him receiving a characterization of service of no less favorable than general, under honorable conditions, and did not submit a statement on his behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate and senior commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.

4.  On 28 June 2004, the applicant again consulted with legal counsel, was advised of the impact of the discharge action, voluntarily and unconditionally waived consideration of his case by an administrative separation board, and did not submit a statement on his behalf.  

5.  On 21 July 2004, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

6.  The applicant was discharged from the Army on 2 August 2004, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct, with a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

7.  The applicant’s record of service indicates 173 days of time lost for being AWOL from          4 November 2003 until 24 April 2004.  He was apprehended by civil authorities and confined from 24 April 2004 until 26 April 2004, when he was returned to military control.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 3 June 2004 for being AWOL (031104-040424); the punishment consisted of reduction to E-1, forfeiture of $597 pay x 2 months, extra duty for 45 days and restriction for 45 days, (FG).

2.  The applicant received five negative counseling statements, dated between 30 April 2004 and 1 June 2004, for violations of the UCMJ, desertion, an Article 85, and AWOL, Article 86, returning from AWOL, and failing to report on numerous occasions.

3.  The record of evidence contains four DA Forms 4187 (Personnel Action), dated 5 November 2003 and 30 April 2004, which indicated the applicant was present for duty, AWOL, dropped from rolls, and civil confinement dates.

4.  A DD Form 616 (Report of Return of Absentee), dated 26 April 2004, indicated the applicant was apprehended by civil authorities.

5.  A DD Form 458 (Charge Sheet), dated 4 December 2003 shows the applicant was charged with AWOL.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

POST-SERVICE ACTIVITY:

The applicant did not provide any information with 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.



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.  By the misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15, five negative counseling statements, four personnel actions, a report of return of absentee and a charge sheet.

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

4.  The applicant contends he first injured his knees during basic training and a doctor recommended that he be discharged from military service as a result of the injury.  The service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition.  Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication.

5.  The applicant further contends he believed he was not being cared for as was needed despite his efforts to get treatment; the Army did not care about him or his well being and he needed proper treatment for his problem.  The record of evidence does not demonstrate that he sought relief through his command or the numerous Army community services like the Chaplain, and other medical resources available to all Soldiers.

6.  The applicant also contends he made a poor decision by going AWOL to return home for treatment.  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.  

7.  The applicant additionally contends he needs an upgrade to get treatment through the VA.  Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

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

9.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review      Date:  1 July 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)		AR20130017174



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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