IN THE CASE OF: BOARD DATE: 18 October 2013 CASE NUMBER: AR20130005750 ___________________________________________________________________________ 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 APPLICANT’S REQUEST AND STATEMENT: 1. The applicant did not properly indicate a possible discharge upgrade or changes to his discharge; however, according to DoDI 1332.28, his request will be considered for an upgrade to an honorable discharge. 2. The applicant did not present any specific issue. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 26 March 2013 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 8 December 2008 d. Reason/Authority/SPD/RE Code: In Lieu of Trial by Court-Martial, AR 635-200 Chapter 10, KFS, RE-4 e. Unit of assignment: C Co, 1st Bn, 8th Cav Rgmt, 2nd BCT, 1st Cavalry Division, Fort Hood, TX f. Current Enlistment Date/Term: 28 January 2005, 3 years, 13 weeks g. Current Enlistment Service: 2 years, 11 months, 13 days h. Total Service: 4 years, 3 months, 29 days i. Time Lost: 333 days j. Previous Discharges: ARNG (030912-031019) / NA ADT (031020-040221) / UNC ARNG (040222-050127) / HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 19K10, K4 M1 Armor Crewmember m. GT Score: 94 n. Education: GED o. Overseas Service: SWA p. Combat Service: Iraq (061020-070801) q. Decorations/Awards: ARCOM; NDSM; ICM-CS; GWOTSM; HSM; ASR OSR; CAB r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant was discharged from the Army National Guard on 27 January 2005, and enlisted in the Regular Army on 28 January 2005, for a period of 3 years and 13 weeks. He was 21 years old at the time of entry and had a high school equivalency (GED). He served in Iraq. He earned an ARCOM. He completed 4 years, 3 months, and 29 days of active duty and reserve service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458, Charge Sheet, which indicates that on 27 October 2008, the applicant was charged with desertion, in that on 1 August 2007, without authority and with the intent to remain away permanently, absented himself from his unit and remained so absent in desertion until 30 June 2008, and failing to report to his appointed place of duty, to wit: 0900 Staff Duty on 11 October 2008. 2. On 21 November 2008, 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 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 did not indicate whether he would be submitting a statement on his own behalf. 3. The unit commander and intermediate commanders recommended approval of the Chapter 10 request with an under other than honorable conditions discharge. 4. On 21 November 2008, 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. 5. The applicant was discharged from the Army on 8 December 2008 with a characterization of service of under other than honorable conditions. 6. The applicant’s record of service indicates 333 days of time lost for being AWOL from 2 August 2008 through 29 June 2008, until he surrendered to military authorities on 30 June 2008. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: Two negative counseling statements, dated 6 October 2008, for desertion (070801-080630) and failing to report to his appointed place of duty (081011). EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided two character reference statements, dated 23 March 2013 and 26 March 2013. POST-SERVICE ACTIVITY: The applicant provided none. 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 individual’s 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 applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. 2. Accordingly, the applicant’s request for a possible upgrade of his characterization was carefully considered. However, after examining the applicant’s record of service, and the documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 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 an ARCOM; however, it was determined that it 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. Although the applicant did not indicate having family or other issues that may have affected his behavior and ultimately caused him to be discharged, 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. Furthermore, the third party statements provided with the application speak highly of the applicant’s performance and character. They recognize his good performance and conduct during his active service and after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant’s chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 7. Regarding the applicant’s PTSD issue addressed by one of the applicant’s third party statement, the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support any contention that the discharge was the result of any medical condition. 8. Therefore, the reason and characterization of service being both proper and equitable, recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 18 October 2013 Location: Washington, DC Did the Applicant Testify? No Counsel: None 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) AR20130005750 Page 2 of 5 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1