Applicant Name: ????? Application Receipt Date: 2011/01/03 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he was injured while in the Army, he fractured his wrist, sprained his other wrist, and his back and knees as well. He is requesting an upgrade of his discharge because he feels the penalties in 2004 were too harsh. Since his discharge he has worked as a disc jockey on and off. Over the past two years he worked at a security firm and is seeking VA benefits for his medical problems and disability. II. Were Proper Discharge and Separation Authority procedures followed? Tender Offer: NA See Attachments: Legal Medical Minority Opinion Exhibits III. Discharge Under Review Unit CDR Recommended Discharge: Date: 990316 Discharge Received: Date: 000628 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: 118th MP Co, Fort Bragg, NC Time Lost: 100 days, AWOL twice (981001-981005 and 981129-990303), surrendered both times. Article 15s (Charges/Dates/Punishment): None in the record; however, the unit commander's memorandum indicates the applicant was reduced in rank to E-1 on 29 October 1998. The UCMJ action that reduced him is not in the OMPF. Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 21 Current ENL Date: 961119 Current ENL Term: 4 Years ????? Current ENL Service: 03 Yrs, 04Mos, 00Days ????? Total Service: 03 Yrs, 04Mos, 00Days ????? Previous Discharges: None Highest Grade: E-2 Performance Ratings Available: Yes No MOS: 11B10/Infantryman GT: NIF EDU: HS Grad Overseas: None Combat: None Decorations/Awards: ASR V. Post-Discharge Activity City, State: Mobile, AL Post Service Accomplishments: None listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 16 March 1999, the applicant was charged with being AWOL (981129-990304). On 16 March 1999, 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 that he understood he could receive an under other than honorable conditions discharge and the discharge would have a significant effect on eligibility for veteran’s benefits. The applicant did not submit a statement in his own behalf. The unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge. The intermediate commander reviewed the Chapter 10 request and recommended approval with an under other than honorable conditions discharge. On 18 December 1999, the separation authority approved the Chapter 10 request and directed an under other than honorable conditions discharge. The applicant was to be reduced to the lowest enlisted rank. b. Legal Basis for Separation: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation 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. c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s military records, and the issue and document submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge. The evidence of record indicates that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. The applicant consulted with defense counsel, and voluntarily in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ. The analyst noted that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It is also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and the applicant was aware of that prior to requesting discharge. The applicant contends that since leaving the Army, he has been employed as a disc jockey and in a security firm. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. The record does not support the applicant’s contention, and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition. He went AWOL for 95 days and upon his return, his command filed court-martial charges against him. The applicant after consulting with legal counsel voluntarily requested to be discharged in lieu of trial by a court-martial. He had the opportunity to make a statement and explain why he went AWOL but he declined. The analyst acknowledges the applicant's successful transition to civilian life and noted his accomplishments as outlined in the application. However, in review of the applicant’s entire service record, the analyst found that these accomplishments did not overcome the reason for discharge and characterization of service granted. Further, eligibility for veteran's benefits to include medical and educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Therefore, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 26 August 2011 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 214 VIII. Board Discussion, Determination, and Recommendation After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief. IX. Board Decision XI. Certification Signature Board Vote: Approval Authority: Character - Change 0 No change 5 Reason - Change 0 No change 5 (Board member names available upon request) EDGAR J. YANGER Colonel, U.S. Army X. Board Action Directed President, Army Discharge Review Board Issue a new DD Form 214 Change Characterization to: Change Reason to: NA Other: NA RE Code: Grade Restoration: No Yes Grade: NA Legend: AWOL Absent Without Leave GCM General Court Martial NA Not applicable SCM Summary Court Martial BCD Bad Conduct Discharge GD General Discharge NIF Not in the file SPCM Special Court Martial CG Company Grade Article 15 HD Honorable Discharge OAD Ordered to Active Duty UNC Uncharacterized Discharge DD Dishonorable Discharge HS High School Graduate OMPF Official Military Personnel File UOTH Under Other Than Honorable FG Field Grade Article 15 IADT Initial Active Duty Training RE Reentry Code Conditions ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20110000255 ______________________________________________________________________________ Page 1 of 3 pages