IN THE CASE OF: Mr. BOARD DATE: 24 April 2015 CASE NUMBER: AR20140006471 ___________________________________________________________________________ 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 characterization from under other than honorable conditions to honorable. 2. The applicant states through counsel, in effect, his discharge was unjust. He was not given an opportunity for rehabilitation and he was not properly advised by counsel. He asks the board to reconsider his traumatic experiences which caused his psychological imbalances, anxiety and trauma that led to his irrational judgment rendering him temporarily insane at the time he went AWOL. There was no psychiatric evaluation conducted and he was promised his discharge would be upgraded to honorable within six months. He had a mental disorder which went undiagnosed at the time which interfered with his ability to perform his duties. He was diagnosed with severe variation of mental disorders caused by his military service. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 10 April 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 9 June 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: D Co, 1-46th Infantry Battalion, Fort Knox, KY f. Current Enlistment Date/Term: 20 September 2005, 4 years and 28 weeks/ERB shows ETS as (090320) g. Current Enlistment Service: 4 months, 18 days h. Total Service: 4 months, 18 days i. Time Lost: 122 days j. Previous Discharges: None k. Highest Grade Achieved: E-1 l. Military Occupational Specialty: None m. GT Score: 91 n. Education: GED Certificate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: None r. Administrative Separation Board: No s. Performance Ratings: No t. Counseling Statements: No u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 20 September 2005, for a period of 4 years and 28 weeks. He was 24 years old at the time of entry with a GED Certificate. He did not have a military occupational specialty (MOS). His record does not contain any evidence of acts of valor or meritorious achievements. He was in initial entry training at Fort Knox, KY when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458, Charge Sheet which indicates on 11 May 2006, the applicant was charged with being AWOL (060102-060504). 2. On 11 May 2006, 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 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 on his own behalf. The unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge. 3. On 19 May 2006, the intermediate commander recommended approval with an under other than honorable conditions discharge. 4. On 25 May 2006, the separation authority approved the Chapter 10 request and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. 5. The applicant’s available record does not contain any evidence of any actions under the Uniform Code of Military Justice (UCMJ) or any negative counseling statements. 6. The applicant was discharged from the Army on 9 June 2006, with a characterization of service of under other than honorable conditions under the provisions of Chapter 10, AR 635-200, by reason of in lieu of trial by court-martial, a Separation Program Designator code (SPD) of KFS and an RE code of 4. 7. The applicant’s record of service shows 122 days of time lost for being AWOL from 2 January 2006 until 3 May 2006; he was apprehended by civil authorities. Also, the applicant had 29 days of excess leave from 12 May 2006 until 9 June 2006. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. The record contains three DA Forms 4187 (Personnel Action), dated between 6 January 2006 and 9 May 2006, showing the dates applicant was present for duty, AWOL and dropped from the rolls. 2. DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated 1 February 2006, indicating the applicant was wanted as a deserter. 3. A DD Form 616 (Report of Return of Absentee) dated 4 May 2006, showing the applicant was apprehended by civil authorities. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 149 in lieu of a DD Form 293, counsel’s brief (twelve pages), and the applicant’s affidavit (two pages). POST-SERVICE ACTIVITY: The applicant did not provide any information with his application. 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. 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. 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. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of his characterization of service 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 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 a general, under honorable conditions or an honorable discharge by the separation authority and it does not support an upgrade to a general, under honorable conditions or an honorable discharge at this late date. 4. The applicant contends his discharge was unjust. 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 contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention he was unjustly discharged. 5. The applicant further contends he was not given an opportunity for rehabilitation. 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. 6. The applicant also contends he was not properly advised by counsel. On 11 May 2006, the record shows 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. See paragraph 2, facts and circumstances. 7. The applicant additionally contends he asks the board to consider his traumatic experiences which caused psychological imbalances, anxiety and trauma that led to his irrational judgment rendering him temporarily insane at the time he went AWOL. The applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record he ever sought such assistance before committing the misconduct which led to the separation action under review. 8. Regarding the applicant’s contention there was no psychiatric evaluation conducted. AR 635-200, paragraph 10-6 states a medical examination is not required but maybe requested by the Soldier under provisions of AR 40-501, Chapter 8. The record does not contain any documentation indicating the applicant requested a psychiatric evaluation. 9. Furthermore, the applicant contends he was promised his discharge would be upgraded to honorable within six months. The US Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge. Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both, were improper or inequitable. 10. Moreover, the applicant contends he had a mental disorder which went undiagnosed at the time interfered with his ability to perform his duties; he was diagnosed with severe variation of mental disorders caused by his military service. The service record contains no evidence of a diagnosis in reference to a mental disorder or condition and the applicant did not submit any evidence to support the contention the discharge was the result of any medical condition. 11. The records show the proper discharge and separation authority procedures were followed in this case. 12. 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: 24 April 2015 Location: Washington, DC Did the Applicant Testify: NA Counsel: Yes [redacted] 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) AR20140006471 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1