AR20140003154

IN THE CASE OF: Mr.

BOARD DATE: 27 February 2015

CASE NUMBER: AR20140003154
___________________________________________________________________________

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 honorable.

2. The applicant states, in effect, that he was unfairly discharge. He contends his misconduct was the result of his efforts to support his family. After being stripped of all his rank and receiving no pay, he went AWOL and started selling drugs. He contends he was treated differently than other Soldiers in his company who were given the opportunity for treatment and not reduced in rank.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 12 February 2014
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 27 September 2002
d. Reason/Authority/SPD/RE: In Lieu of Trial by Court-Martial, AR 635-200, Chapter 10, KFS, RE-4
e. Unit of assignment: C Co, 1st Bn, 22 IN, Fort Hood, TX
f. Current Enlistment Date/Term: 25 February 2000, 3 years
g. Current Enlistment Service: 1 year, 11 months, 20 days
h. Total Service: 1 year, 11 months, 20 days
i. Time Lost: 222 days
j. Previous Discharges: None
k. Highest Grade Achieved: E-3
l. Military Occupational Specialty: 11B10, Infantryman
m. GT Score: 90
n. Education: GED
o. Overseas Service: None
p. Combat Service: None
q. Decorations/Awards: NDSM, 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 25 February 2000, for a period of 3 years. He was 19 years old and had a high school equivalency (GED). He was serving at Fort Hood, TX when his discharge was initiated. His 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 that on 19 April 2002, the applicant was charged with going AWOL x 3 (011108-011220, 020205-020311, and 020402-020416), breaking restriction (020402), and wrongfully using cocaine between (011001 and 011004). The evidence of record also contains a second DD Form 458, which indicates that on 17 July 2002, the applicant was charged with going AWOL (020504-020711).

2. On 24 July 2002, 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 UOTHC discharge and that the discharge would have a significant effect on eligibility for veterans benefits. The applicant did not submit a statement on his own behalf. The chain of command recommended trial by Special Court-Martial Empowered to Adjudge a Bad Conduct Discharge.

3. On 16 September 2002, 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 27 September 2002, 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 222 days of time lost; 42 days for going AWOL from 8 November 2001 until his return on 19 December 2001, 34 days for going AWOL from 5 February 2002 until his return on 10 March 2002, 14 days for going AWOL from 2 April 2002 until his return on 15 April 2002, 68 days for going AWOL from 4 May 2002 until his return on 10 July 2002, and 55 days for being confined in pre-trial confinement from 13 July 2002 until his release on 15 September 2002.

6. The applicants record does not show any recorded actions under the UCMJ. However, the applicant’s record shows he achieved the rank of PFC/E-3 and at the time he requested a Chapter 10 he was reduced to a PV2/E-2; however, the action that caused his reduction is not contained in the service record.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. There is a positive urinalysis report, dated 4 October 2001, contained in the record coded; IR (Inspection Random), for Cocaine.

2. A CID Report dated 6 November 2001, which indicates the applicant was the subject of investigation for wrongfully using cocaine.

3. Memorandum dated 19 March 2002; subject matter Administrative Restriction, which restricted the applicant due to his inability to act in a disciplined and responsible manner.

4. United States Army Trial Judiciary Third Judicial Circuit, Fort Hood, TX, approving the continued pretrial confinement, dated 15 July 2002.

5. Fifteen DA Form 4187s/DA Form 4187-Es(Personnel Action), dated between 1 November 2001 and 16 September 2002, changing the applicant’s duty status from present for duty (PDY) to absent without leave (AWOL), AWOL to dropped from the rolls (DFR), DFR to PDY, PDY to AWOL, AWOL to confined civilian authorities (CCA), and CCA to PDY, PDY to AWOL, PDY to AWOL, AWOL to PDY, PDY to AWOL, AWOL to DFR, DFR to HOS, PDY to CCA, and CCA to PDY.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 and a self-authored statement.

POST-SERVICE ACTIVITY:

None was provided 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.

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. 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 unfairly discharged. 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 he was unfairly discharged.

5. In fact, he record confirms that the applicants discharge was appropriate because the quality of his service was not consistent with the Army’s standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the misconduct, the applicant diminished the quality his service below that meriting a general or a fully honorable discharge. The applicants record of service was marred by four periods of AWOL, breaking restriction, and wrongfully using cocaine.

6. The applicants statement alone does not overcome the governments presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.

7. The applicant contends his misconduct was the result of his efforts to support his family. 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.

8. The applicant contends he was treated differently than other Soldier in his company who committed the same misconduct. However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. Further, AR 600-85, paragraph 3-8 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance.

9. 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.

10. Therefore, the reason for discharge and the 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: 27 February 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) AR20140003154

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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