IN THE CASE OF:  	Mr.

      BOARD DATE:  	28 April 2014

      CASE NUMBER:  	AR20140003147
___________________________________________________________________________

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 did not submit any issues of equity or propriety to be considered by the Board.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		18 February 2014
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			25 August 2005
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:			HHC, United States Army Medical Department 							Activity, Kenner Army Health Clinic, Fort Lee, VA
f. Current Enlistment Date/Term:	19 November 2003, 3 years
g. Current Enlistment Service:	1 year, 9 months, 7 days
h. Total Service:			5 years, 2 days
i. Time Lost:				None
j. Previous Discharges:		RA (000824-031118)/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	91W10, Health Care Specialist
m. GT Score:				100
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (051101-060901)
q. Decorations/Awards:		ARCOM, AGCM, NDSM, GWOTSM, ASR, CMB
r. Administrative Separation Board: 	No
s. Performance Ratings:		NA
t. Counseling Statements:		No
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant was enlisted in the Regular Army 24 August 2000, for a period of 4 years.  He was 18 years old at the time of entry and a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 91W10, Health Care Specialist.  He reenlisted on         19 November 2003 for a period of 4 years and was 21 years old at the time.  His record shows he served a tour of combat, earned several awards including an ARCOM, AGCM, and a CMB; and he achieved the rank of SPC/E-4.  He was serving at Fort Lee, VA when his discharge was initiated. 



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on      2 August 2005, the applicant was charged with the following offenses:

     a.  making official statements to a Rite Aid Pharmacist, by submitting DOD Prescription Slips for Percocet, with the signature of Dr. M.H.D on them as the prescriber, which statements were false on divers occasions between (050401-050504)

     b.  wrongfully possessing thirty (30) tablets of oxycodone (050504)

     c. wrongfully using oxycodone (050503)

     d.  stealing a prescription pad and signature stamp, military property, of a value of less than $500, property of the United States Army.

2.  On 2 August 2005, 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 behalf.  The applicant’s chain of command’s documentation recommending approval of the Chapter 10 request with an under other than honorable conditions discharge is not contained in the available record and government regularity prevails in the discharge process.

3.  On 22 August 2005, the separation authority approved the Chapter 10 request and directed the applicant’s 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 25 August 2005, with a characterization of service of under other than honorable conditions under the provisions of Chapter 10,             AR 635-200, by reason of in lieu of trial by court-martial, a Separation Program Designator code (SPD) of KFS and an RE code of 4.

5.  The applicant’s record of service does not contain any negative counseling statements, unauthorized absences, time lost or actions under the Uniform Code of Military Justice (UCMJ).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record of evidence contains a DA Form 2823 (Sworn Statement), dated 4 May 2005, which gave an account of how he signed the doctor’s name on the prescription to get the medication.

2.  The record also contains a CID Report of Investigation, dated 9 May 2005 which indicated the applicant was under investigation for forgery, larceny of private property, wrongful possession of opiates, wrongful use of opiates, making a false official statement and larceny of government property.

3.  A positive urinalysis report coded IU (Inspection Unit), dated 4 May 2005 for opiates.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, and a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant did not provide any information with the 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.  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.  

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.  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 his characterization of service 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 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 under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  His record documented he served a tour in combat;  he earned several awards including an ARCOM, AGCM, and a CMB that 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 did not submit any issues of equity or propriety to be considered by the Board.

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

6.  Therefore, the reason for discharge and the 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:  Yes [Redacted]

Witnesses/Observers:  NA 

Board Vote:
Character Change:  2	No Change:  3
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)		AR20140003147



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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