IN THE CASE OF: Mr. BOARD DATE: 14 July 2014 CASE NUMBER: AR20140006543 ___________________________________________________________________________ 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 his discharge was improper and inequitable. He contends his misconduct was the result of being targeted by his platoon sergeant causing him to believe his life was threatened. He followed all commands given by his chain of command; however he believes he was disliked by his platoon sergeant and other members of his unit was aware of his situation. He could not perform his duties in a safe manner or progress because of his fear. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 10 April 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 11 March 2002 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: A Co, 11th EN Bn, Fort Stewart, GA f. Current Enlistment Date/Term: 24 March 2000, 3 years g. Current Enlistment Service: 1 year, 6 months, 28 days h. Total Service: 1 year, 6 months, 28 days i. Time Lost: 140 days j. Previous Discharges: None k. Highest Grade Achieved: E-2 l. Military Occupational Specialty: None m. GT Score: 95 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: None r. Administrative Separation Board: NA s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: Yes, 20 November 2002 SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 24 March 2000, for a period of three years. He was 20 years old at the time of entry and a high school graduate. His record documents no acts of valor or significant achievements. He completed 1 year, 6 months and 28 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 28 June 2001, the applicant was charged with going AWOL (010125-010614). 2. On 29 June 2001, 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 an UOTHC discharge. 3. On 31 January 2002, 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 11 March 2002, 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 a RE code of 4. 5. The applicant’s record of service indicates 149 days of time lost; nine days for being AWOL 5 September 2000 until his return on 14 September 2000 and 140 days for being AWOL 25 January 2001 until his return on 14 June 2001. The DD Form 214 under review also indicates 256 days of excess leave (010629-020311). EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Article 15, imposed on 17 October 2000, for going AWOL (000905-000913). The punishment consisted of forfeiture of $234.00 for one month (suspended) and extra duty and restriction for 14 days, (CG). 2. A DA Form 4187 (Personnel Action), dated 11 July 2001, changing the applicant's duty status from DFR to PDY. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, self-authored letter, documents from his medical records to include statements (58 pages), documents from military medical records (18 pages) email and face book documented conversations (8 pages), and certificates of completion/award (3). 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 under honorable conditions discharge by the separation authority and it does not support an upgrade to an honorable or a general under honorable conditions discharge at this late date. 4. The applicant contends his discharge was improper and inequitable and that his misconduct was the result of his fear for his life. 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 this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his discharge was improper or inequitable. 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. 5. Furthermore, the evidence of record shows the applicant was discharged for going AWOL for over 140 days. 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. The character of the applicant’s discharge is commensurate with his overall service record. 7. The records show the proper discharge and separation authority procedures were followed in this case. 8. 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: 14 July 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: Yes [redacted] Witnesses/Observers: No DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional document: a. Character reference letter – 1 page 2. The applicant presented no additional contentions. In addition to the evidence in the record, the Board carefully considered the additional document and testimony presented by the applicant at the personal appearance hearing. 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) AR20140006543 Page 5 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1