IN THE CASE OF:	Mr. 

      BOARD DATE:	9 June 2014

      CASE NUMBER:	AR20130019126
___________________________________________________________________________

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 to upgrade the characterization of his service from under other than honorable to general, under honorable conditions or honorable.

2.  The applicant states, in effect, he was being medically discharged but his medication made him act out.  He was given a summarized Article 15, which he refused to sign and he was denied the right to request a court-martial; the right to appeal; the right to confront witnesses; and present matters in defense—the sentence was imposed immediately.  Since the rules were not followed, the Article 15 should be thrown out.  He concludes he suffered from traumatic brain injury (TBI).

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			15 October 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				2 May 2012
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, 1st IN Bn, 24th Infantry Regiment, Fort 							Wainwright, AK
f. Enlistment Date/Term:			2 March 2010, 3 years and 16 weeks
g. Current Enlistment Service:		2 years, 0 months, 26 days
h. Total Service:				2 years, 0 months, 26 days
i. Time Lost:					36 days
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		11C10, Indirect Fire Infantryman
m. GT Score:					104
n. Education:					HS Graduate
o. Overseas Service:				Alaska, SWA
p. Combat Service:				Afghanistan (110425-110810)
q. Decorations/Awards:			NDSM, ACM-2, GWOTSM, ASR, NATO MDL
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			Yes
u. Prior Board Review:				Yes, 6 May 2013

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 2 March 2010, for a period of 3 years and 16 weeks.  He was 21 years old at the time of entry and a high school graduate.  He served in Afghanistan.  He was trained in and awarded military occupational specialty (MOS) 11C10, Indirect Fire Infantryman.  His record documents no acts of valor or significant achievement.  He completed 2 years, 0 months, and 26 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet, which indicates that on 4 April 2012, the applicant was charged with the following offenses:

   a.	violation of Article 86, UCMJ, by being AWOL (120321-120326);
b.	violation of Article 90, UCMJ, by disobeying a superior commissioned officer to not consume alcoholic beverages (120319);
c.	violation of Article 92, UCMJ, by violating a lawful General Order for wrongfully using spice (120308);
d.	violating of Article 109, UCMJ, by wrongfully damaging a welcome home poster (120314); and 
e.	three specifications of violating Article 134, UCMJ, by wrongfully communicating threats to kill his first sergeant and two of his supervisors, and hurt his commander (120314, 120315), and wrongfully spitting dip on a welcome home poster made by children of deployed Soldiers (120314).

2.  The applicant’s election of rights is not contained in the available record; however, the record shows that on 4 April 2012, he was placed in pretrial confinement.  It is presumed the applicant was assigned a defense counsel and would have 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 would have admitted guilt to the offense, or a lesser included offense.  The immediate commanders recommended trial by a special court-martial empowered to adjudge a bad conduct discharge.  

3.  On 26 April 2012, 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 2 May 2012, with a characterization of service of under other than honorable conditions.

5.  The applicant’s DD Form 214 shows 36 days of time lost for being AWOL from 21 March 2012 until his return on 25 April 2012.  However, the DA Form 4187 that would record his date of return from AWOL status is not in the record.  The DD Form 458 (charge sheet) indicates he was AWOL for a lesser amount of time (120321 – 120326) than that reflected on his DD Form 214.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  DD Form 458, Charge Sheet, indicating the aforementioned charges were preferred against the applicant on 4 April 2012.

2.  DD Form 2707, Confinement Order, dated 4 April 2012, with its associated documents, indicates the applicant’s pretrial confinement order, followed by a memorandum reflecting a magistrate review of the pretrial confinement that was conducted on 25 April 2012.

3.  DA Form 4187, Personnel Action, indicating the applicant’s duty status changed from PDY to AWOL, effective 21 March 2012.

4.  A positive urinalysis, dated 8 March 2012, coded as PO (Probable Cause), indicates it was positive for spice.

5.  Ten negative counseling statements, dated between 20 January 2011 and 20 March 2012, for demonstrating that he was a threat to himself and others and requiring him to be watched by battalion staff duty; being tested for possible use of spice; failing to be at his appointed place of duty on multiple occasions; disobeying lawful orders; damaging private and military property; wrongfully using spice; driving while intoxicated and reckless driving; and for behavioral health issues and being notified of separation action. 

6.  Memorandum for Record, dated 15 March 2012, subject: Communication of a Threat, was rendered by the unit commander.

7.  Memorandum for Record, dated 19 March 2012, subject: Verification of Probable Cause for Search, rendered by the unit commander indicates the discovery of a bottle of alcohol in the applicant’s room while he was prohibited from consuming alcohol due to using sleeping medication.

8.  Memorandum of Understanding or Agreement, dated 27 December 2011, subject: Direct Orders related to the use of alcohol, details an agreement between the applicant and the unit commander for the purpose of ordering the applicant to not operate a motor vehicle or consume alcohol.

9.  Company grade Article 15, dated 29 February 2012, for failing to report to his appointed place of duty on three occasions (120215, 120201, 120120), and leaving his place of duty without proper authorization (111110).  His punishment consisted of reduction to the grade of E-2, forfeiture of $389.00 (suspended), 14 days of extra duty and restriction, and an oral reprimand. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a one-page health record, dated 1 May 2012.

POST-SERVICE ACTIVITY: 

The applicant provided none.  

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 his discharge was carefully considered.  However, after examining the applicant’s record of service, the issues 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 offenses punishable under the UCMJ with a punitive discharge.  The applicant was placed in pretrial confinement and assigned a defense counsel.  The applicant would have voluntarily requested discharge for the good of the service in lieu of trial by court-martial, and pursuant to his request being approved, he was subsequently discharged. Accordingly, the evidence of record indicates 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 he was being medically discharged from the Army but medications made him act out, and he suffered from TBI.  However, the service record contains no evidence of a TBI diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  The medical document provided with the application indicates issues such as psychiatric disorders, including an adjustment disorder with depressed mood.  However, there are many Soldiers with the same condition that completed their service successfully.

4.  The applicant contends he was denied his rights in an summarized Article 15 proceedings; therefore, he should be thrown out.  However, there is no record of any summarized Article 15 proceedings.  Even if it was available, that issue does not have any bearing on his current discharge under review.  Therefore, the rationale the applicant provided as the basis for what he believes justifies an upgrade of his discharge is not supportable by any evidence contained in the record and can only be viewed as speculative in nature.

5.  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 and in accordance with his request for discharge in lieu of trial by court-martial.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.   

6.  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:  Personal Appearance     Date: 9 June 2013     Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel:  None

Witnesses/Observers:  Yes - Wife

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a. Medical documents from Medicare – 70 pages

2.  The applicant presented no additional contentions.

In addition to the evidence in the record, the Board carefully considered the additional documents and 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)		AR20130019126

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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