1. Applicant's Name: a. Application Date: 17 February 2018 b. Date Received: 26 February 2018 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in effect, an upgrade to discharge will allow receipt of benefits and GI Bill in order to further education. The applicant states never deserting, but instead the applicant had a broken neck in 2009 and was unconscious and paralyzed in a hospital. The applicant's neck was broken in five places and now has plates and screws. Upon return, the First Sergeant said the applicant was AWOL. Per the Board's Medical Officer, a voting member, based on the information available for review at the time in the service record, the Armed Forces Health Longitudinal Technology Application (AHLTA), and Joint Legacy Viewer (JLV), notes indicate the applicant does not have any behavioral health conditions that are mitigating for the misconduct which led to separation from the Army. In a records review conducted at Arlington, VA on 19 December 2018, 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: 19 February 2010 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 25 January 2010, the applicant was charged with violating: Charge I: Article 85, UCMJ, for being AWOL in desertion from 14 November 2008 to 21 September 2009. Charge II: Article 86, UCMJ, five specifications: for being AWOL from 14 to 22 January 2010; and, for failing to go at the time prescribed to his appointed place of duty on 2, 3, 18 November and 15 December 2009. Charge III: Article 90, UCMJ, for having received a lawful command from Captain A, his superior commissioned officer, then known by the applicant to be his superior commissioned officer, to report to Battalion Staff Duty Desk every two hours from 1800 hours to 2200 hours, or words to that effect, on or about 11 January 2010, willfully disobey the same. Charge IV: two specifications, Article 91, UCMJ: The applicant on or about 17 November 2009, was disrespectful in language toward Sergeant B. a noncommissioned officer, then known by the applicant to be a noncommissioned officer, who was then in the execution of his office, by saying to him, "get away you piece of shit" and "fuck off," or words to that effect. The applicant, did on about 11 January 2010, was disrespectful in deportment toward Sergeant R, a noncommissioned officer, then known by the applicant to be a noncommissioned officer, who was then in the execution of his office, by refusing to sign his Battalion Staff Duty sign in sheet while crumpling it up and throwing it away. Charge V: Article 107, UCMJ: the applicant did, on or about 8 January 2010, with intent to deceive, make to Sergeant B, an official statement, to wit: I am not in Houston and I'm in my barracks room, or words to that effect, which statement was totally false, and was then known by the applicant to be so false. Charge VI: two specifications, Article 128, UCMJ: The applicant did, on or about 13 January 2010, unlawfully strike Private E-2 H on the shoulder with a closed fist The applicant did, on or about 13 January 2010, unlawfully throw a chair at Private E-2 H and strike him in the shoulder with the chair. Charge VII: two specifications, Article 130, UCMJ: The applicant did, on or about 13 January 2010, unlawfully enter a room, the property of US Army, with intent to commit a criminal offense, to wit: assault consummated by a battery, therein. Charge VIII: two specifications, Article 134, UCMJ: The applicant having been restricted to the limits of Fort Hood, Texas, by a person authorized to do so, did, at or near Fort Hood, Texas, on or about 8 January 2010, break said restriction. The applicant having been restricted to the limits of Fort Hood, Texas, by a person authorized to do so, did, at or near Fort Hood, Texas, on or about 18 December 2010, break said restriction. (2) Legal Consultation Date: 3 February 2010 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date/Characterization: 5 February 2010 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 1 November 2007 / 3 years, 18 weeks b. Age at Enlistment / Education / GT Score: 23 / GED / 102 c. Highest Grade Achieved / MOS / Total Service: E-3 / 11B10, Infantryman / 1 year, 9 months, 1 day d. Prior Service / Characterizations: RA, 16 June 2006 - 3 October 2006 / UNC e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Charge sheet as described in previous paragraph 3c. Two Personnel Action forms, reflect the applicant's duty status changed as follows: From "Present for Duty (PDY)" to "Absent Without Leave (AWOL)," effective 14 November 2008; and, From "AWOL" to "Dropped From Rolls (DFR)," effective 14 December 2008. i. Lost Time / Mode of Return: 310 days (AWOL, 14 November 2008 - 20 September 2009) / Apprehended by Civil Authorities j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 149. 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. REGULATORY CITATION(S): 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to honorable conditions. The applicant's record of service, the issues and documents submitted with his 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. The applicant, in consultation with legal counsel voluntarily requested, in writing, a 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, and he 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 veterans' benefits. 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 no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of discharge. The applicant claims that he was never AWOL, but rather in a hospital. However, the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicant's numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. Further, the applicant after consulting with counsel voluntarily requested a discharge in lieu of court-martial. The applicant contends that medical issues contributed to his discharge from the Army. However, the service record does not support the applicant's contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition. Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication. The applicant contends that an upgrade of his discharge would allow educational benefits through the use of the GI Bill. 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. 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 19 December 2018, 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 Authority to: No Change e. Change SPD / RE Code to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer 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 NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20180003901 1