IN THE CASE OF:  	

      BOARD DATE:  	9 February 2015

      CASE NUMBER:  	AR20140018574
___________________________________________________________________________

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 the Discussion and Recommendation that follows, the Board determined the discharge was too harsh based on the applicant's testimony and length of service mitigated the discrediting entry in his service record.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the Board determined the reason for discharge to be 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 general, under honorable condition.

2.  The applicant states, in effect, his superior recommended a general discharge.  He was on a Navy base and noticed two Soldiers getting jumped by Navy guys.  He jumped in to help his fellow Soldiers.  He believed he had representation.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			27 October 2014
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				24 July 2001
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:				A Company, 84th Engineer Battalion, Schofield
Barracks, Hawaii
f. Current Enlistment Date/Term:		20 July 1998/4 years
g. Current Enlistment Service:		3 years, 5 days
h. Total Service:				3 years, 3 months, 25 days
i. Time Lost:					None
j. Previous Discharges:			DEP, 980330-980719, NA
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		62E10, Heavy Construction Equipment 
							Operator
m. GT Score:					NIF
n. Education:					GED 
o. Overseas Service:				Hawaii
p. Combat Service:				NIF
q. Decorations/Awards:			ASR, OSR
r. Administrative Separation Board: 		N/A
s. Performance Ratings:			N/A
t. Counseling Statements:			No
u. Prior Board Review:				Yes
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 20 July 1998, for a period of 4.  He was 21 years old at the time of entry and had a GED certificate.  His record documents no acts of valor or significant achievement.  The applicant completed 3 years and 5 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 
20 April 2001, the applicant was charged with committing an assault on or about 19 November 2000, upon Petty Officer Second Class H, by choking him until he lost consciousness with a means likely to produce death or grievous bodily harm, to wit: a headlock.

2.  On 25 April 2001, 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.  On 13 July 2001, the unit commander recommended a general discharge and the intermediate commander recommended approval of an under other than honorable conditions discharge.  

3.  On 2 July 2001, 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 24 July 2001, 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:

The Army Review Board Case Decision to include memoranda by Trial Counsel dated 10 April 2011, and 30 April 2011, stipulating the facts in the case and the case files for approved separation.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 20 October 2014, and DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant did not provide any 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.  

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 the characterization of his discharge was carefully considered.  However, after examining the applicant’s record of service, his military records, the documents and the issues 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 applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.

4.  The applicant contends an upgrade to general, under honorable condition is justifiable because his superior (i.e., unit commander) recommended a general discharge.  He was on the Navy base when he noticed two Soldiers getting jumped by Navy guys and he jumped in the fight to help his fellow Soldiers.  Record shows the applicant’s unit commander did recommend a general, under honorable conditions discharge based on the applicant’s outstanding conduct during duty hours.  However, the separation authority is not bound by the recommendations of the initiating or intermediate commander and has complete discretion to direct any type of discharge and characterization of service authorized by applicable provision of AR 635-200, paragraph 2-2c.  Additionally, the applicant contends while he was on the Navy base he noticed two Army Soldiers being jumped by some Navy guys.  According to CPT B, Trial Counsel, in his memorandum stated that the applicant and two of his friends, PFC K and PFC T were at the Pearl Club, PFC K and Petty Officer 2nd Class H (the victim) engaged in a minor verbal altercation that ended without incident.  After they left the club, they saw the victim and PFC T and SPC S follow him to his bachelor enlisted quarters while PFC K followed behind.  PFC T and SPC S started shoving the victim, knocking him to the ground twice.  PFC T picked up a brick hitting the victim in the head while SPC S chocked the victim until he was unconscious.

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: Personal Appearance	  Date:  9 February 2015     Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel: None

Witnesses/Observers: None

Board Vote:
Character Change:  4	No Change:  1
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:		No Change
Change RE Code to:			No Change
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)		AR20140018574

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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