IN THE CASE OF: BOARD DATE: 15 May 2015 CASE NUMBER: AR20140008299 ___________________________________________________________________________ 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 under other than honorable conditions discharge to honorable. In addition, the applicant requests a change to the narrative reason for discharge to reflect “medical reason.” 2. The applicant states, in effect, his discharge was improper and was based on his race. The applicant states in effect, racial slurs were used to describe African Americans by numerous NCOs and fellow Soldiers stating that they “shouldn’t be allowed in the Army and that they die all the time.” The applicant states, he was also told that he was getting kicked out and being sent to the ghetto. The applicant contends, he was physically abused by a Caucasian NCO, Staff Sergeant (SSG) G, when no one was looking and that the NCO was the only one who sought out the applicant to punish every time. The applicant also states, he was forced to be in formations, while medicated and recovering, following an assault by his fellow Soldiers. In addition, the applicant states he does not remember signing paperwork that pertained to discharge proceedings. The applicant contends, an upgrade will enhance his access to government support. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 5 May 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 22 October 2007 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: 2d Battalion, 69th Armor (Rear), 3d Brigade Combat Team (Rear) (Provisional), Ft Benning, GA f. Current Enlistment Date/Term: 26 October 2005/NIF g. Current Enlistment Service: 1 year, 11 months, 27 days h. Total Service: 1 year, 11 months, 27 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-1 l. Military Occupational Specialty: 63M10, Bradley Fighting Vehicle System Maintainer m. GT Score: NIF n. Education: NIF o. Overseas Service: Korea p. Combat Service: None q. Decorations/Awards: GWTSM, ASR r. Administrative Separation Board: N/A s. Performance Ratings: N/A t. Counseling Statements: Yes u. Prior Board Review: N/A SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 26 October 2005 for an unknown period. He was 20 years old at the time of entry. The record is void of specifics regarding the applicant’s level of education. He served in Korea and completed 1 year, 11 months, and 7 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Benning, Georgia. SEPARATION FACTS AND CIRCUMSTANCES: 1. The record is void of the DD Form 458 (Charge Sheet). However, the record contains the DD Form 2707 (Confinement Order), dated 27 September 2007, which indicates the applicant violated the following offenses: a. Article 92 – disobeying a lawful order from a commissioned officer, b. Article 91 – assaulting a noncommissioned officer, and c. Article 134 – distribution of alcohol to a minor 2. On 1 October 2007, 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 and intermediate commanders recommended approval of an under other than honorable conditions discharge. 3. On 3 October 2007, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions. The applicant was reduced to the lowest enlisted rank. 4. The applicant was discharged from the Army on 22 October 2007, with a characterization of service of under other than honorable conditions. 5. The applicant’s record of service does not show any record of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. There is one positive urinalysis report contained in the record: IR, Inspection Random, 13 August 2007, marijuana 2. Numerous negative counseling statements, dated between 11 July 2007 and 28 September 2007, for breaking restriction, disobeying a direct order from a commissioned officer, providing alcohol to a minor, failing a urinalysis, missing formation, failing to report to his appointed place of duty at the appointed time, insubordinate conduct towards an NCO, continuously disobeying lawful orders, failing to perform his duties as a Soldier, not adhering to barracks policy, disrespect, assaulting a NCO, and initiation of separation proceedings. 3. A Commander’s Incident Report, dated 27 September 2007, indicated the applicant was involved in a fight and was assaulted. EVIDENCE SUBMITTED BY THE APPLICANT: 1. The applicant provided two DD Forms 293, dated 17 March 2014 and 21 July 2014, and a DD Form 214 covering the period of service under review. 2. The applicant provided excerpts from his separation packet and a character letter, dated 9 February 2015, written by his former NCO, SFC (Ret) B. SFC B’s letter states the applicant consistently exceeded expectations in his personal skills and problem-solving abilities. SFC B also states, the applicant is a good candidate for an upgraded discharge. POST-SERVICE ACTIVITY: None was provided with the 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. 2. 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. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of his characterization and a change to the narrative reason for discharge was carefully considered. However, after examining the applicant’s record of service, the issue 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 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 discharge by the separation authority and it does not support an upgrade to an honorable or a general discharge at this late date. 4. The applicant contends that he was harrased and discriminated by members of his chain of command; however, he 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. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge. 5. The rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature. 6. The applicant contends his discharge should be upgraded because it will enhance his access to government support However, the issue the applicant submitted is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. 7. 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: Records Review Date: 15 May 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) AR20140008299 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1