IN THE CASE OF:  	Mr. 

      BOARD DATE:  	10 June 2014

      CASE NUMBER:  	AR20140004561
___________________________________________________________________________

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 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 honorable.

2.  The applicant states, in effect, that his misconduct of going AWOL was the result of not receiving any help from his command for his medical issues of being depressed and suicidal.  The applicant contends that he suffered malicious treatment due to the proclamation of his mental state which was frowned upon due to the assumption that he was shunning service and abstaining from duty.  He believes no one took his situation seriously when it should have mattered all along, he had many incentives to return to his unit on time and was told he had alternatives when he self admitted himself to the mental ward.  He believes his discharge is a cover up of negligence on the part of his command.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		7 March 2014
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			22 April 2010
d. Reason/Authority/SPD/RE Code:	In Lieu of Trial by Court-Martial, Chapter 10 								KFS, RE-4
e. Unit of assignment:			1st Bn, 2nd Avn Regt (Attack), Fort Carson, CO
f. Current Enlistment Date/Term:	1 February 2007, 3 years and 22 weeks
g. Current Enlistment Service:	1 year, 5 months, 18 days
h. Total Service:			1 year, 5 months, 18 days
i. Time Lost:				641 days 
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	92F10, Petroleum Supply Specialist
m. GT Score:				NIF
n. Education:				GED
o. Overseas Service:			Korea 
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, KDSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None
u. Prior Board Review:			No
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 1 February 2007, for a period of 3 years and   22 weeks.  He was 27 years old at the time of entry and had a high school equivalency (GED).  His record indicates he served in Korea and achieved the rank of PFC/E-3.  His record documents no acts of valor or significant achievements.  He completed 1 year, 5 months, and       18 days of military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on    12 November 2009, the applicant was charged with desertion (080103-091006).

2.  The evidence of records show that on 18 December 2009, an Article 32 investigation was conducted to determine thoroughly and partially all relevant facts submitted in the applicant case and weigh and value all facts to determine the truth of matters stated in the charges.

3.  On 1 March 2010, the applicant having examined the charge and specifications preferred against him and all the supporting evidence produced by the government and after consulting with his defense counsel and being fully advised that he had the legal and moral right to plead not guilty and to place the burden of proving his guilt beyond a reasonable doubt upon the government; offered to plead to the charges of violation of Article 86 x 4 (080103 to 080107, 080201 to 080701, 080702 to 090701, and 090702 to 091006).  The applicant indicated he was entering into the offer to plead guilty freely and voluntarily and that he was offering to plead guilty providing the convening authority would take action as specified in Part II of his plea agreement.

4.  Part II of the plea agreement indicates the applicant would offer to plead guilty provided the convening authority disapproved any confinement in excess of 90 days.

5.  On 7 March 2010, 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 submitted a statement on his own behalf.  The unit commander and intermediate commanders recommended approval of an UOTHC discharge.  

6.  On 10 March 2010, the separation authority approved the Chapter 10 request and directed the applicant's discharge with a characterization of service of UOTHC.  The applicant was reduced to the lowest enlisted rank. 

7.  The applicant was discharged from the Army on 22 April 2010, with a characterization of service of UOTHC under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with a Separation Program Designator code (SPD) of KFS and an RE code of 4. 

8.  The applicant’s record of service indicates 641 days of time lost for being AWOL from         3 January 2008, until his apprehension on 6 October 2009.


EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A Military Police Report, dated 28 October 2009, that indicates the applicant was the subject of an investigation for desertion-surrendered to military/civilian authorities.

2.  Three DA Forms 4187 (Personnel Action) dated between 3 January 2008 and 6 October 2009 which changed the applicant's duty status from PDY to AWOL, AWOL to DFR, and DFR to PDY.

3.  Psychiatric Evaluation Memorandum, dated 4 March 2010, which diagnosis the applicant with an adjustment disorder, major depression, recurrent, remission, borderline personality disorder features, and no medical etiology affecting psychological condition.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided two DD Form 293s, a memorandum of consideration, documents from his AMHRR (6 pages), document from his medical records (4 pages), General Court-Martial Order Number 13, dated 12 April 2010, preliminary findings and court-martial records, character statement, letter to a Congressman referencing his pending separation, and a copy of his DD Form 214 for the period of service under review. 

POST-SERVICE ACTIVITY: 

None were provide with the application.

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for 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.  Although an honorable or general discharge is authorized, a discharge UOTHC 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.  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.


ANALYST’S DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his characterization 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 documents no acts of significant achievement or valor and 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’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceedings were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the incident of misconduct.  

5.  The applicant contends his discharge was the result of going AWOL for not receiving any help from his command for his medical issues of being depressed and suicidal.  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 his command made no attempts to help him with his medical issues or that they were made aware of the applicant's medical issues prior his going AWOL.  

6.  The applicant provided a copy of a letter to his congressman.  He contends he sought help from chain of command/chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers prior to going AWOL.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  

7.  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.

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

9.  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: Personal Appearance	  Date: 10 June 2014   Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel:  None

Witnesses/Observers:  Yes - Fiancée

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted no additional documents:

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:  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)		AR20140004561



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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