IN THE CASE OF: Mr. BOARD DATE: 25 March 2015 CASE NUMBER: AR20140004048 ___________________________________________________________________________ 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 requests an upgrade of his discharge from general, under honorable conditions to honorable. 2. The applicant states, in effect, that his discharge should be upgraded to reflect the dedication he had towards his career. He contends, he was wrongfully accused of being AWOL. He contends after returning from Pathfinder school he requested leave to fix some problems his wife was having prior to his deployment, as a result of his command not knowing his whereabouts he had to deal with AWOL charges which were later withdrawn. He contends, he was not allowed to deploy with his unit and was later told he basically served no purpose for the Army's current needs. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 4 March 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 20 May 2005 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: HHC, 3rd Bn, 15th IN Supt Bn, 2d Bde, 3d IN Div, Fort Stewart, GA f. Current Enlistment Date/Term: 3 January 2003, 3 years g. Current Enlistment Service: 2 years, 2 months, 29 days h. Total Service: 5 years, 8 months, 12 days i. Time Lost: 49 days j. Previous Discharges: ARNG-990720-000105/NA ADT-000106-000421/HD ARNG-000422-030102/HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 11B10, Infantryman m. GT Score: 114 n. Education: GED o. Overseas Service: Southwest Asia p. Combat Service: Kuwait/Iraq (020901-030826) q. Decorations/Awards: NDSM, GWOTEM, GWOTSM, ASR, PUC, CIB r. Administrative Separation Board: NA s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Army National Guard (ARNG) 20 July 1999, for a period of 8 years. He was 18 years old at the time of entry and had a high school equivalency (GED). On 2 January 2003, he was discharged with an honorable characterization of service pending enlistment in the Regular Army. On 3 January 2003, the applicant enlisted in the Regular Army for a period of 3 years. His record indicates he served in Kuwait/Iraq; achieved the rank of SPC/E-4; and earned several awards to include the CIB. He completed 5 years, 8 months, and 12 days of total military service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458, Charge Sheet which indicates on 5 April 2005, the applicant was charged with going AWOL (040831-041019). 2. On 3 May 2005, 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 requested he be discharged with an honorable discharge and that he not be administratively reduced prior to his discharge. The applicant did submit a statement on his own behalf. The unit commander and intermediate commanders recommended approval of the Chapter 10 request with a general, under honorable conditions discharge. 3. On 9 May 2005, the separation authority approved the Chapter 10 request and directed the applicant's discharge with a characterization of service of general, under honorable conditions. 4. The applicant was discharged from the Army on 20 May 2005, with a characterization of service of general, under honorable conditions 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 49 days of time lost for going AWOL from 31 August 2004 until his return on 19 October 2004. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Two DA Forms 4187/4187-E (Personnel Action), dated 31 August 2004 and 19 October 2004, changing the applicant's duty status from present for duty (PDY) to absent without leave (AWOL) and AWOL to PDY. 2. 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 293, memorandum reference withdrawal of court-martial charges preferred on 9 February 2005, orders, awards, and statements (i.e., letters of support, lease agreement, notice of returned checks, notice of eviction proceedings, utility bills, and state of North Carolina court documents). 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 applicant’s request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicant’s record of service, the issues and document 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 applicant contends his discharge should be upgrade to reflect the dedication he had towards his career. The contention was noted; however, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct. It appears the applicant’s generally good record of service was the basis for his receiving a general, under honorable conditions discharge instead of the normal under other than honorable conditions discharge. His misconduct clearly diminished his overall record of service below that meriting a fully honorable discharge. 4. The applicant contends the charges against him were withdrawn after proving he was not AWOL. The memorandum in the record showing the preferred charges against the applicant being withdrawn and dismissed without prejudice on 9 February 2005 was noted. However, the records show that on 5 April 2005, charges were preferred against the applicant for going AWOL 31 August 2004 through 19 October 2005, which later resulted in his discharge, with a characterization of service of general, under honorable conditions under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial. 5. The applicant 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. 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. It appears the character of the applicant’s discharge is commensurate with his overall service record. 7. 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: 25 March 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) AR20140004048 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1