AR20140001905

IN THE CASE OF: Mr.

BOARD DATE: 7 January 2015

CASE NUMBER: AR20140001905
___________________________________________________________________________

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 APPLICANTS 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 states, in effect, that he would like an upgrade of his discharge for the purpose of being able to rejoin the military. He contends his discharge was inequitable because it was based on one isolated incident in 28 months of service with no other action. He cracked his hip, knee, pelvic, ended up owing money, and was in worse shape than before enlisted. He contends he did not handle being hurt well. He is 34 years old and cannot get anything going in his life.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 24 January 2014
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 8 September 2004
d. Reason/Authority/SPD/RE: In Lieu of Trial by Court-Martial, AR 635-200, Chapter 10, KFS, RE-4
e. Unit of assignment: 30th AG Bn, Fort Benning, GA
f. Current Enlistment Date/Term: 6 January 2004, 3 years
g. Current Enlistment Service: 5 months, 16 days
h. Total Service: 5 months, 16 days
i. Time Lost: 77 days
j. Previous Discharges: None
k. Highest Grade Achieved: E-1
l. Military Occupational Specialty: None
m. GT Score: 96
n. Education: HS Graduate
o. Overseas Service: None
p. Combat Service: None
q. Decorations/Awards: None
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 6 January 2004, for a period of 3 years. He was 23 years old at the time of entry and a high school graduate. The record does not contain any evidence of acts of valor or meritorious achievements.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence of record contains a DD Form 458, Charge Sheet which indicates on 26 August 2004, the applicant was charged with going AWOL (040530-040815).

2. On 26 August 2004, 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 veterans benefits. The applicant submitted a statement on his own behalf. The unit commander recommended approval of an UOTHC discharge.

3. On 30 August 2004, 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.

4. The applicant was discharged from the Army on 8 September 2004, 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.

5. The applicants record of service indicates 77 days of time lost for being AWOL from 30 May 2004 until his apprehension by civilian authorities on 15 August 2004.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

Three DA Form 4187s (Personnel Action), dated between 1 June 2004 and 24 August 2004, changing the applicant’s duty status from present for duty (PDY) to absent without leave (AWOL), AWOL to drop from the roll (DFR), and DFR to attached/PDY.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

POST-SERVICE ACTIVITY:

None was provided by the applicant.

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 applicants request for an upgrade of his characterization was carefully considered. However, after examining the applicants record of service, the issues and document 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 his discharge was based on an isolated incident during 28 months of service. The evidence of record shows the applicant completed five months and 16 days of active duty service. Although an isolated incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by an isolated incident provides the basis for a characterization. The applicant’s incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.

5. The applicant contends his misconduct was the result of not being able to handle getting hurt while in training. The applicant’s contention was noted; however, 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.

6. The applicant expressed his desire for an upgrade of his discharge for the purpose of being able to rejoin the military. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.

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 applicants discharge is commensurate with his overall service record.

8. 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: Records Review Date: 7 January 2015 Location: Washington, DC

Did the Applicant Testify, NA

Counsel: None

Witnesses/Observers: NA

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: 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) AR20140001905

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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