IN THE CASE OF: BOARD DATE: 22 September 2014 CASE NUMBER: AR20140003475 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony, 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 requests an upgrade of his discharge from under other than honorable conditions to honorable. 2. The applicant states, in effect, that he requests an upgrade of his discharge as a result of being harassed by senior noncommissioned officers and a captain after witnessing hazing of a new recruit at Fort Knox, KY. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 21 February 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 30 April 2001 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 Trp, 5th Sqd, 15th Cav Rgt, Fort Knox, KY f. Current Enlistment Date/Term: 30 August 1999, 3 years, 22 weeks g. Current Enlistment Service: 1 year, 3 months, 10 days h. Total Service: 5 years, 1 month, 15 days i. Time Lost: 140 days j. Previous Discharges: ARNG-951025-951226/NA/HD IADT-951227-960412/UNC ARNG-960413-970821/HD USARCG-970822-990829/NA k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 92Y / Unit Supply Specialist m. GT Score: 94 n. Education: HS Graduate 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 Army National Guard on 25 October 1995, for a period of 8 years. He was 20 years old at the time of entry and a high school graduate. On 21 August 1997, he was transferred to the United States Army Reserve Control Group (USARCG), with a characterization of service of honorable. The applicant enlisted in the Regular Army on 30 August 1999, for a period of 3 years and 22 weeks. His record documents no acts of valor or significant achievements. He completed 5 years, 1 month and 15 days of total military service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458, Charge Sheet which indicates on 17 February 2000, the applicant was charged with going AWOL x 2 (990920 to 991017 and 991020 to 000211). 2. On 17 February 2000, 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 veteran’s benefits. The applicant did not submit a statement on his own behalf. The unit commander recommended approval of an UOTHC discharge. 3. On 6 April 2001, 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 30 April 2001, 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 applicant’s record of service indicates 140 days of time lost; 27 days for being AWOL from 20 September 1999 until his return on 17 October 1999 and 113 days for being AWOL from 20 October 1999 until his return on 11 February 2000. The DD Form 214 under review includes 438 days of excess leave (000218-010430) EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: There are no negative counseling or actions under the Uniform Code of Military Justice in the record. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 149, and a copy of his DD Form 214, for the period of service under review. POST-SERVICE ACTIVITY: None were provide 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 applicant’s request for an upgrade of his characterization was carefully considered. However, after examining the applicant’s 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 provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance. 5. The applicant contends he was harassed by senior noncommissioned officers and a captain after witnessing hazing of a new recruit. 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. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was harassed prior to his discharge. The applicant’s statements alone does not overcome the government’s 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. 6. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 22 September 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: Yes Witnesses/Observers: None DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: The applicant presented the additional contention: - Requests Board upgrade characterization to general, under honorable conditions 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) AR20140003475 Page 2 of 5 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1