Applicant Name: ????? Application Receipt Date: 2012/09/04 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he was told that he would receive his Post 9/11 GI Bill and VA benefits, but he did not qualify for anything. He served 12 months in Iraq and has PTSD. He believes his prior unit made false promises. He also has never received his per diem for his 2009-2010 tour. 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: 110523 Discharge Received: Date: 110615 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: HHC, 307th Bde Spt Bn, 1BCT, 82nd Airborne Division, Fort Bragg, NC Time Lost: AWOL (101217-110302) for 76 days, unknown mode of return Article 15s (Charges/Dates/Punishment): 101119, failed to obey a lawful general order x 2, by wrongfully possessing Salvia Divinorum,"spice" (101110) and wrongfully possessing a firearm in the barracks (101110), reduced to E-1; forfeiture of $669 x 2 months (suspended); 45-day extra duty and restriction, (FG) Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 24 Current ENL Date: 100304 Current ENL Term: 04 Years ????? Current ENL Service: 01 Yrs, 00 Mos, 17 Days ????? Total Service: 03 Yrs, 00 Mos, 24 Days ????? Previous Discharges: RA (080306-100303) / HD Highest Grade: E-4 Performance Ratings Available: Yes No MOS: 92G (Food Service Operation) GT: 97 EDU: GED Overseas: SWA Combat: Iraq (090818-100730) Decorations/Awards: ARCOM; ICM-CS; GWOTSM; ASR; MUC V. Post-Discharge Activity City, State: Post Service Accomplishments: None listed. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 29 April 2011, the applicant was charged with AWOL (101217-110303). On 13 May 2011, 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 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 in his own behalf. The unit commander and intermediate commander recommended approval of an under other than honorable conditions discharge. On 1 June 2011, the separation authority approved the Chapter 10 request and directed an under other than honorable conditions discharge. The applicant was reduced to the lowest enlisted rank. The applicant's record contains an MP Report for weapons violation and possession of spice (101110). b. Legal Basis for Separation: 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. 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. Furthermore, the analyst noted the applicant's issue and determined that the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct, which led to the separation action under review. The record of evidence does not demonstrate that he sought relief through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. Moreover, there is a presumption of regularity in the conduct of governmental affairs. This presumption is applied in all Army discharge reviews 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 a change to the characterization of service granted. The applicant’s statements alone do not overcome the presumption of government regularity in this case and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. The analyst noted the applicant's issues about his desire for VA benefits. However, eligibility for veteran's benefits to include 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. Furthermore, the record does not support the issue that the applicant suffers from Post Traumatic Stress Disorder and the applicant submitted no evidence to support that the discharge was the result of any medical condition. Further, the analyst noted the applicant's issue about not receiving his per diem pay for his tour; however, that request for resolving his pay does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. The analyst found no evidence of arbitrary or capricious actions by the command. The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, the analyst concluded the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. The applicant did not submit in further evidence in support of the personal appearance hearing. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 8 April 2013 Location: Washington, D.C. Did the Applicant Testify? Yes No Counsel: NA Witnesses/Observers: NA Exhibits Submitted: DD Form 149, dated 9 August 2012; DD Form 214 for service under current review. 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 Discussion and Recommendation which follows, the Board determined the discharge to be proper and equitable and voted to deny relief. IX. Board Decision Board Vote: Character - Change 0 No change 5 Reason - Change 0 No change 5 (Board member names available upon request) X. Board Action Directed Issue a new DD Form 214 Change Characterization to: Change Reason to: No Change Other: NA RE Code: Grade Restoration: No Yes Grade: NA XI. Certification Signature Approval Authority: ARCHIE L. DAVIS III Colonel, U.S. Army President, Army Discharge Review Board JOSEPH M. BYERS Lieutenant Colonel, U. S. Army Secretary Recorder 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 UOTH - Under Other Than Honorable Conditions ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20120016589 ______________________________________________________________________________ Page 1 of 4 pages