AR20140002071

IN THE CASE OF: Mr.

BOARD DATE: 17 December 2014

CASE NUMBER: AR20140002071
___________________________________________________________________________

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. However, notwithstanding the propriety of the applicant’s discharge, the Board found that the applicant’s DD Form 214, block 27, contains the erroneous RE code of 3. The Board directed an administrative correction to block 27 to read RE-4, as required by Army Regulations.

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 under other than honorable conditions discharge to honorable. He also requests a correction to his DD 214 to reflect his overseas deployment status and injury.

2. The applicant states, in effect, while deployed to Kuwait he injured his back. He states upon return to Fort Benning, Georgia it was determined that he had four herniated discs in his back that was putting pressure on his spine. He states his platoon sergeant was furious and thought he was faking the injury. He contends his platoon sergeant would continuously have him break his medical profile by having him do heavy lifting and conduct field exercises. He states he was assigned a barracks room to maintain although he had an apartment with a Soldier who had tested positive for cocaine. He states he was arrested for an unpaid parking ticket and spent six days in jail. Upon his release, he states he was sent to Fort Knox to be separated from the Army for having three offenses of being AWOL. He states when he arrived to Fort Knox he found out he was being court-martialed for having cocaine in his barracks room and for a positive urinalysis test. He states an investigation proved the cocaine was not his and his medication may have triggered a false positive test result. He was given the option to either take an Article 15 for being AWOL and the positive urinalysis test and be processed out on under a medical review for his back or take a general, discharge. He took the Article 15 but a few days later he was told the medical review could take up to six months. He was then given the options again.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 27 January 2014
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 23 June 2000
d. Reason/Authority/SPD/RE Code: In Lieu of Trial by Court-Martial, AR 635-200,
Chapter 10, KFS, RE-3
e. Unit of assignment: C Co, 1-30th Infantry, Fort Benning, GA
f. Current Enlistment Date/Term: 13 May 1997/4 years
g. Current Enlistment Service: 2 years, 11 months, 14 days
h. Total Service: 2 years, 11 months, 14 days
i. Time Lost: 57 days
j. Previous Discharges: None
k. Highest Grade Achieved: E-3
l. Military Occupational Specialty: 11M10, Fighting Vehicle Infantryman
m. GT Score: NIF
n. Education: HS Graduate
o. Overseas Service: Kuwait
p. Combat Service: None
q. Decorations/Awards: ASR
r. Administrative Separation Board: NA
s. Performance Ratings: NA
t. Counseling Statements: NIF
u. Prior Board Review: No
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 13 May 1997, for a period of 4 years. He was 19 years old at the time of entry and a high school graduate. He served in Kuwait and his record is void of any significant acts of valor and achievement. He completed 2 years, 11 months, 14 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Benning, Georgia.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The applicants disciplinary history includes accrual of 57 days of time lost for three periods of AWOL from 13 September 1998 until 16 September 1998, from 13 October 1998 until 18 October 1998, and from 19 October 1998 until 6 December 1998. He was apprehended by civilian authorities and returned to military control during his last period of absence.

2. On 12 January 1999, a court-martial charge was preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) based on the AWOL offense outlined in the preceding paragraph. The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and of the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him. Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

3. In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge. He also confirmed his understanding that if his request for discharge was approved, he could receive an under other than honorable conditions discharge. He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws. The applicant confirmed he had no desire to perform further military service and did not submit a statement in his own behalf.

4. On 18 December 1999, the separation authority approved the applicant’s request for discharge and directed that he be reduced to the lowest enlisted grade and issued a UOTHC Discharge Certificate. On 2 March 2000, the applicant was reduced to the grade of E-1.

5. On 23 June 2000, the applicant was discharged accordingly. The DDForm214 reflects had 528 days of excess leave for the period 13 January 1999 to 23 June 2000.

6. The applicants record is void of any actions under the UCMJ, however, he contends he received a Article 15 for being AWOL and testing positive for cocaine.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. DA Form 458 (Charge Sheet), dated 12 January 1999, for being AWOL on three separate occasions.

2. A General Officers Memorandum of Reprimand (GOMOR), dated 21 September 1998, reflects the applicant was reprimanded for driving under the influence.

3. DA Form 458 (Charge Sheet), dated 18 November 1998, for being AWOL beginning 6 November 1998.

4. Several DA Forms 4187 (Personnel Action), dated between 13 September 1998 through 10 December 1998, changing the applicants duty.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 149, dated 21 January 2014 and self-authored statement, a DD Form 214, and Orders Number 171-0178, dated 19 June 2000.

POST-SERVICE ACTIVITY:

The applicant did not provide any in support of his 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 individuals 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 applicants request for an upgrade of his characterization was carefully considered. However, after examining the applicants 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. However, a careful review of the applicants service record reflects that someone in the discharge process erroneously entered on the applicant’s DD Form 214 in block 27, reentry code RE-4. Therefore, as approved by the separation authority, recommend the following adminstrative correction, change block 27, reentry code to read RE-4.

3. 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.

4. 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.

5. The applicant contends that he was harrased and discriminated by members of his chain of command; 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. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge.

6. Further, 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.

7. The applicant requests his DD Form 214 be corrected to reflect his deployment status and injury. However, the applicants requested change to the DD Form 214 does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization.

8. Except for the modifications as stated above, the discharge was both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 17 December 2014 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: Yes
Change Characterization to: No Change
Change Reason to: No Change
Change Authority for Separation: NA
Change RE Code to: 4
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) AR20140002071

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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