Applicant Name: ????? Application Receipt Date: 2012/11/14 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that she tested positive for THC during a urinalysis test and went AWOL in conjunction with some approved leave dates, which was revoked. She went to see her mother who was injured in a car wreck and required surgery. She received a UOTH because of war. She never had any charges involving weapons or violence. She asks the Board to review her original records and compare them to the records resulting from her appeal. They will reflect a severe differential—AWOL and a positive urinalysis are the only information in her records. Somehow, her file was mixed with another person’s file. II. Were Proper Discharge and Separation Authority procedures followed? Tender Offer: NA See Attachments: Legal Medical Minority Opinion Exhibits III. Discharge Under Review Unit CDR Recommended Discharge: Date: NIF Discharge Received: Date: 021220 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: D Btry, 5th Bn, 52nd ADA, 11th ADA Bde, Fort Bliss, TX Time Lost: AWOL (020728-021117) for 113 days, returned to unit. Article 15s (Charges/Dates/Punishment): 010718, wrongful use of marijuana (010501-010531), reduced to E-1; forfeiture of $215 x 2 months; 45-day extra duty, (FG) Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 21 Current ENL Date: 000829 Current ENL Term: 04 Years ????? Current ENL Service: 01 Yrs, 11 Mos, 29 Days ????? Total Service: 01 Yrs, 11 Mos, 29 Days ????? Previous Discharges: None Highest Grade: E-3 Performance Ratings Available: Yes No MOS: 14T (Patriot Missile Crewmember) GT: 103 EDU: GED Overseas: None Combat: None Decorations/Awards: ASR V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: None listed. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 26 November 2002, the applicant was charged with AWOL (020728-021118) and wrongful use of marijuana (020607-020708). On 9 December 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. Further, the applicant indicated she understood she 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 in her own behalf. The unit commander and intermediate commander recommended approval of an under other than honorable conditions discharge. On 13 December 2002, the separation authority approved the Chapter 10 request and directed an under other than honorable conditions discharge. The applicant was reduced to the lowest enlisted rank. b. Legal Basis for Separation: 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. 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. c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s military records, and the issue and documents submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge. The evidence of record indicates that the applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. The applicant consulted with defense counsel, and voluntarily in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated or lesser included offenses under the UCMJ. The analyst noted that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It is also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and the applicant was aware of that prior to requesting discharge. Furthermore, the analyst noted the applicant's issue and determined that the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review. The record of evidence does not demonstrate that she sought relief through her command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. Likewise, she has provided no evidence that she should not be held responsible for her misconduct. The applicant contends that her discharge was unjust because her records were mixed up with another person's information, and that she never had weapons or violence related charges, but that AWOL and testing positive during a urinalysis test were her only offenses. 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 her issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that she was unjustly discriminated. In fact, the applicant’s Article 15, her AWOL and positive urinalysis results, and her subsequent voluntary request for discharge in lieu of trial by court-martial documents her misconduct. The applicant’s statements alone do not overcome the government’s presumption of regularity and she has not provided any documentation or further evidence in support of her request for an upgrade of her discharge. The analyst acknowledges her service accomplishments as stated in her application. However, the analyst did not find this sufficiently mitigating to warrant an upgrade of the discharge under review. The analyst found no evidence of arbitrary or capricious actions by the command. The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 3 April 2013 Location: Washington, D.C. Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 293, dated 12 August 2012; SPCM Orders, dated 12 February 2003; DD Form 214 for service under current review. VIII. Board Discussion, Determination, and Recommendation 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 to be proper and equitable and voted to deny relief. IX. Board Decision Board Vote: Character - Change 0 No change 5 Reason - Change 0 No change 5 (Board member names available upon request) X. Board Action Directed Issue a new DD Form 214 Change Characterization to: Change Reason to: No Change Other: N/A RE Code: Grade Restoration: No Yes Grade: None XI. Certification Signature Approval Authority: ARCHIE L. DAVIS III Colonel, U.S. Army President, Army Discharge Review Board JOSEPH M. BYERS Lieutenant Colonel, U. S. Army Secretary Recorder 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 UOTH - Under Other Than Honorable Conditions ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20120021232 ______________________________________________________________________________ Page 1 of 4 pages