IN THE CASE OF:  	Mr. 

      BOARD DATE:  	1 July 2014

      CASE NUMBER:  	AR20140000413
___________________________________________________________________________

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 his 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 fully honorable or a general, under honorable conditions discharge.

2.  The applicant states, in effect, he was discharged from the military without any evidence or his day in court.  He states he had honorable service until his discharge.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			30 December 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				19 June 2013
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:				Bravo Troop, 1-32nd Calvary Regiment (Rear)
(Provisional), Fort Campbell, KY
f. Current Enlistment Date/Term:		30 December 2009/6 years
g. Current Enlistment Service:		7 years, 5 months, 20 days
h. Total Service:				9 years, 9 months, 8 days
i. Time Lost:					None
j. Previous Discharges:			DEP, (030912-031229), NA
RA, (031230-050804), HD
RA, (050805-091229), HD
k. Highest Grade Achieved:			E-6
l. Military Occupational Specialty:		19D30, Cavalry Scout
m. GT Score:					NIF
n. Education:					NIF
o. Overseas Service:				SWA
p. Combat Service:				Afghanistan (100613-110430)
Iraq (071109-090117)
q. Decorations/Awards:			ARCOM-2, AAM-2, MUC-2, AGCM-2, NDSM
ACM-2CS, GWOTSM, KDSM, ICM-CS, NPDR-2, ASR, OSR-3, NATO MDL, CAB
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 30 December 2003, for a period of 3 years.  He was 22 years old at the time of entry.  He reenlisted in the military on 30 December 2009, for a period of 6 years.  He served in Afghanistan and Iraq and earned two ARCOMs and two AAMs.  He completed a total of 9 years, 9 months, and 8 days of active duty service.  When his discharge proceedings were initiated, he was serving at Fort Campbell, KY.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s record is void of the complete facts and circumstances concerning the events which led to his discharge from the Army.  However, a memorandum from LTC E, Staff Judge Advocate, dated 29 May 2013, indicates the applicant was charged with one specification of Article 112a, wrongful use of a controlled substance.

2.  On 23 May 2013, 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 29 May 2013, 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 19 June 2013, 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.  A memorandum from LTC E, Staff Judge Advocate, dated 29 May 2013, reflects the applicant was accused of wrongful use of a controlled substance.

2.  A memorandum from the applicant, dated 23 May 2013, requesting discharge from the military under the provisions of Chapter 10, AR 635-200.

3.  One counseling statement, dated 18 June 2013, for debt avoidance.

4.  Six NCOERs covering the period between 1 August 2007 and 9 April 2013.  He was rated as “Among the Best” and “Fully Capable” by his raters.  He received a “1/1,” “2/1,” “2/2,” and “3/2” from his senior raters for his “Overall Performance/Overall Potential.”  

5.  A memorandum, dated 10 January 2013, reflects the applicant was disqualified for award of the Army Good Conduct Medal (AGCM).
6.  Four DA Forms 1059, for successful completion of the WLC, ALC phase I and II, and Drill Sergeant School.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 26 December 2013, and a DD Form 214 covering the period of service under review.

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 of service was carefully considered.  However, after examining the applicant’s record of service and the issue submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The applicant’s record is void of the complete facts and circumstances concerning the events which led to his discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge.  Barring evidence to the contrary, it appears all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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.  

3.  The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  The record confirms 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.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a non-commissioned officer.  The applicant, as an NCO, had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge.  His record does not document any significant achievement or valor, it 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 contends that he had good service until his discharge.  However, 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.  This service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge based on his misconduct.

5.  The applicant contends there was no evidence to support his discharge or to go to court.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discriminated.  In fact, the applicant voluntarily requested discharge from the Army and his statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.   

6.  If the applicant desires a personal appearance, it is his responsibility to meet the burden of proof since the evidence is not available in the official record.  The applicant will need to provide the appropriate documents or other evidence (i.e., discharge packet) sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.

7.  Therefore, based on the available evidence and the presumption of government regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus 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 his 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:  1 July 2014      Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: Veterans of Foreign Wars

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:			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)		AR20140000413



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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