IN THE CASE OF:  	

      BOARD DATE:  	23 March 2015

      CASE NUMBER:  	AR20140020043
___________________________________________________________________________

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 an honorable discharge.

2.  The applicant states, in effect, he was injured and not treated for it; he was brutalized instead.  He complained to his chain of command; they wrote him up instead and became even harsher.  It became impossible for him to cope with the inhuman reality.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			25 November 2014
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				15 May 2009
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, Chapter 10 								KFS, RE-4
e. Unit of assignment:				95th Engineer Company, Schofield Barracks 							HI
f. Current Enlistment Date/Term:		22 January 2008, 3 years and 16 weeks
g. Current Enlistment Service:		6 months, 14 days
h. Total Service:				6 months, 14 days
i. Time Lost:					283 days
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		21B10, Combat Engineer
m. GT Score:					89
n. Education:					Two years of college
o. Overseas Service:				Hawaii
p. Combat Service:				None
q. Decorations/Awards:			NDSM, GWOTSM, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			No
t. Counseling Statements:			No
u. Prior Board Review:				Yes
SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 22 January 2008, for a period of 3 years and   16 weeks.  He was 35 years old at the time of entry with two years of college.  He trained in and was awarded military occupational specialty (MOS) 21B10, Combat Engineer.  His record does not contain any evidence of acts of valor or meritorious achievements; and he achieved the rank of PFC/E-3.  He was serving at Schofield Barracks, Hawaii, when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet, which indicates on             19 September 2009, the applicant was charged with desertion, in that he without authority, absented himself from his unit with the intent to remain away permanently (080802-090420).

2.  On 29 April 2009, 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’s defense counsel submitted a statement on his behalf.  The unit commander recommended approval of an under other than honorable conditions discharge.  

3.  On 30 April 2009, the senior commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.

4.  On 13 May 2009, 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 discharge.  The applicant was reduced to the lowest enlisted rank. 

5.  The applicant was discharged from the Army on 13 May 2009, with a characterization of service of under other than honorable conditions.

6.  The applicant's record of service indicates he had 262 days of time lost for being in a deserter status from 2 August 2008 until 21 April 2009; he was apprehended by civilian authorities.  Also, the applicant was placed in pre-trial confinement from 23 April 2009, until        13 May 2009, for 21 days.  The total time lost was 283 days.

7.  The applicant’s service record did not contain any evidence of any actions under the Uniform Code of Military Justice (UCMJ) or negative counseling statements.  Of note, the applicant mentioned in a statement he received an Article 15.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A Military Police Report dated 20 April 2009, indicating the applicant was apprehended by civilian authorities as a deserter off post.

2.  DD Form 2707 (Confinement Order), dated 23 April 2009, indicating the applicant was in pre-trial confinement.

3.  The record contains four DA Forms 4187 (Personnel Action), dated between 2 August 2008 and 23 April 2009, showing the applicant’s present for duty, AWOL, dropped from rolls and pre-trial confinement dates.
4.  DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated 31 August 2008, indicating the applicant was wanted as a deserter.

5.  DD Form 616 (Report of Return of Absentee) dated 18 April 2009, indicating the applicant was apprehended by civilian authorities.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, self-authored statement, medical documents (four pages), DD Form 616, telephone/verbal conversation record, DD Form 458, two deserter processing checklists, and a DD Form 214.

POST-SERVICE ACTIVITY:

The applicant did not provide any information with his 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.

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 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 contends he was injured and not treated for it; he was brutalized instead.  The service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition.  Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication.

5.  The applicant further contends he complained to his chain of command; they wrote him up instead and became even harsher.  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. 

6.  The applicant also contends it became impossible for him to cope with the inhuman reality.  He had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.

7.  Therefore, the reason and characterization of service being both proper and equitable, the analyst recommends the Board deny relief.



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance    Date: 23 March 2015    Location:  Washington, DC

Did the Applicant Testify:  Yes

Counsel:  Yes

Witnesses/Observers:  None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

     a.   Medical documents (10 pages)

     b.   VA document (1 page)

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:  	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)		AR20140020043



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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