1. Applicant’s Name: a. Application Date: 10 June 2015 b. Date Received: 15 June 2015 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to general, under honorable conditions. The applicant seeks relief contending, in effect, his discharge was unjust and violated his personal right to obtain representation. The applicant contends that he was discharged without any due process or representation. The applicant contends that he called his NCO as much as 80 times, but his NCO refused to take his calls. When the applicant did get a hold of his NCO, he refused to help him get back because he was a deserter. After months of being at home, due to receiving no help from his NCO, his wife, or the USO, the applicant did some research and found out that he can turn himself in at Fort Knox, Kentucky. As he was loading his motorcycle for his trip to Fort Knox, he was arrested by the Sheriff for being a deserter. The applicant contends that, while out-processing at Fort Knox, he was asked if he wanted to stay in the Army. He answered “yes” and signed a paper stating so. In a records review conducted at Arlington, VA on 31 August 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason/Authority/Codes/Characterization: In Lieu of Trial by Court-Martial / AR 635-200 / Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 3 October 2007 c. Separation Facts: (1) Date of Notification of Intent to Separate: The applicant voluntarily requested a discharge in lieu of trial by court-martial under AR 635-200, Chapter 10, on 2 August 2007. (2) Basis for Separation: The applicant was informed of the following reasons: Charge I: Violation of the UCMJ, Article 86, AWOL (26 September 2006 – 27 July 2007) (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 2 August 2007 (5) Administrative Separation Board: N/A (6) Separation Decision Date/Characterization: 18 September 2007 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date/Period of Enlistment: 22 May 2002 / 4 years (The applicant was retained in service 500 days for the convenience of the government per UP 10 USC 12305) b. Age at Enlistment/Education/GT Score: 29 / HS Graduate / NIF c. Highest Grade Achieved/MOS/Total Service: E-5 / 92F10, Petroleum Supply Specialist and 11B10, Infantryman / 14 years, 1 month, and 7 days d. Prior Service/Characterizations: RA, 28 October 1992 – 27 October 1995 / HD USARCG, 28 October 1995 – 21 October 1997 / NA RA, 22 October 1997 – 11 April 2000 / HD RA, 12 April 2000 – 21 May 2002 / HD e. Overseas Service/Combat Service: SWA / Iraq (14 February 2004 – 14 February 2005) f. Awards and Decorations: ARCOM-2, AAM-2, AGCM-2, NDSM-2, GWTEM, GWTSM, NOPDR, ASR, OSR-2 g. Performance Ratings: November 2004 – October 2005, Fully Capable 1 December 2005 – 12 September 2006, Marginal h. Disciplinary Action(s)/Evidentiary Record: Three DA Forms 4187 (Personnel Action), dated between 4 February 2013 and 31 July 2007, reflect the applicant’s duty status changed as follows: From “Present for Duty (PDY)” to “AWOL,” effective 26 September 2006 From “AWOL” to “Dropped From Rolls (DFR),” effective 26 October 2006 From “DFR” to “Attached/PDY,” effective 25 July 2007 DD Form 458 (Charge Sheet), dated 2 August 2007 reflects the applicant was charged with violation of the UCMJ, Article 86, AWOL. i. Lost Time: 319 days (AWOL, 26 September 2006 – 25 July 2007) 62 days (Excess Leave, 3 August 2007 – 3 October 2007) j. Diagnosed PTSD/TBI/Behavioral Health: NIF 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, dated 10 June 2015; a self-authored letter; and DD Forms 214, dated 27 October 1995 and 3 October 2007. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): 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. 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. 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to general, under honorable conditions. The applicant’s record of service, the documents and the issues submitted with the application were carefully reviewed. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. His record documents several acts of achievement at the time of discharge; however, it appears they not support the issuance of an honorable or a general discharge at the time of discharge. The applicant contends that his discharge was unjust and violated his personal right to representation; he was discharged without any due process or representation. 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 he was discharged without any due process or representation. In fact, evidence in the record reflects on 2 August 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 applicant contends that he called his NCO as much as 80 times, but his NCO refused to take his calls. When the applicant did get a hold of his NCO, he refused to help him get back because he was a deserter. However, 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. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 31 August 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214/Issue a New Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change SPD/RE Code to: No Change e. Restore (Restoration of) Grade to: No Change AUTHENTICATING OFFICIAL: COL, US ARMY Presiding Officer Army Discharge Review Board Legend: 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 BH – Behavioral Health HD - Honorable Discharge OAD - Ordered to Active Duty SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OMPF - Official Military Personnel File TBI – Traumatic Brain Injury CID - Criminal Investigation Division MP – Military Police – PTSD – Post-Traumatic Stress Disorder UNC - Uncharacterized Discharge ELS – Entry Level Status MST – Military Sexual Trauma RE - Reentry UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20150010517 1