IN THE CASE OF: Mr. BOARD DATE: 18 December 2013 CASE NUMBER: AR20130010070 ___________________________________________________________________________ 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. However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 24 character of service, contains the erroneous characterization of service of general, under honorable conditions. The Board directed an administrative correction to block 24 to read under other than honorable conditions as approved by the separation authority. 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 discharge from general, under honorable conditions to honorable and a change to the narrative reason for separation. 2. The applicant states, in effect, he joined so that he might be able to attend a good school; he paid into the GI Bill and cannot use the funds unless he has an honorable discharge; he earned these benefits by being a Solider and they were taken away unfairly from him. His unit brought forth a total of four charges and drop one as time progressed; he was told it would be best to enter a plea of guilty to one of the charges. He has not been in trouble with the law and has been working for the past couple of months. If given another chance to serve in the armed forces, he guarantees his appearance would be satisfactory. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 28 May 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 15 November 2012 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: A Battery, 4-25th Field Artillery Regiment, 3rd Brigade Combat Team, Fort Drum, NY f. Current Enlistment Date/Term: 19 August 2009, 3 years and 15 weeks g. Current Enlistment Service: 3 years, 2 months, 27 days h. Total Service: 4 years, 17 days i. Time Lost: None j. Previous Discharges: ARNG (081029-090818)UNC k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 13D10, Field Artillery Automation m. GT Score: 101 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Afghanistan (110325-111014) q. Decorations/Awards: NDSM, ACM-W/2 CS, GWOTSM, ASR, OSR, NATO MDL, CAB r. Administrative Separation Board: No s. Performance Ratings: No t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Army National Guard on 29 October 2008 for a period of 8 years. He was 23 years old at the time of entry and a high school graduate. He was discharged on 18 August 2009 with an uncharacterized discharge to enlist in another component of the US Armed Forces. The applicant enlisted in the Regular Army 19 August 2009, for a period of 3 years and 15 weeks and was 23 years old at the time of entry and a HS Graduate. His record also shows he served a combat tour, but earned no awards for acts of valor or meritorious achievement; however he received a CAB and achieved the rank of PFC/E-3. He was serving at Fort Drum, NY when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 6 August 2012, the applicant was charged with the following offenses: a. being disrespectful in deportment toward noncommissioned officers x 6, (SFC) (120612), (SSG) (120612), (SGT) (110623, 110607, 110416, 110409) b. being drunk on duty, such conduct being prejudicial to good order and discipline in the armed forces or being of a nature to bring discredit upon the armed forces (120628) c. unlawfully striking PFC B on the face with his fist (110816) 2. On 15 October 2012, 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 record indicated the applicant submitted a statement on his behalf; however, the statement is not contained in the available record. The applicant’s chain of command recommended that the charges and their specifications be referred to a Special Court-Martial. 3. On 22 October 2012, 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’s chain of command recommended approval of the Chapter 10 request with an under other than honorable conditions discharge. 4. On 24 October 2012, 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. 5. The applicant was discharged from the Army on 15 November 2012, with a characterization of service of under other than honorable conditions under the provisions of Chapter 10, AR 635-200, by reason of in lieu of trial by court-martial, a Separation Program Designator code (SPD) of KFS and an RE code of 4. 6. The applicant’s record of service does not contain any documented record of unauthorized absences, time lost or actions under the Uniform Code of Military Justice (UCMJ). EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. He received 16 negative counseling statements which were completed between 14 October 2010 and 25 June 2012 for being drunk on duty, failing to report on numerous occasions, failing to obey an order or regulation numerous times, disrespecting a fellow Soldier, failing to follow a directive, disrespecting an NCO on more than one occasion, being late for formation, not shaving, insubordination, and disrespecting a superior officer. 2. The record of evidence contains six DA Forms 2823 (Sworn Statement), all dated 16 August 2011 which gave the author’s version of the incident when the applicant assaulted a fellow Soldier. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided an online application, certificate of completion for basic training, a diploma, Field Artillery Tactical Data System Specialist, Enlisted Record Brief (ERB) and a DD Form 214. POST-SERVICE ACTIVITY: The applicant did not provide any 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. 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. 2. 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. 3. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. 5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of his characterization of service was carefully considered. However, after examining the applicant’s record of service, his military records, the issues and documents 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 documented he served a tour in combat; however, he earned no awards for 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 requested a change to the narrative reason for separation. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "KFS" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. 5. The applicant contends he joined so that he might be able to attend a good school; he paid into the GI Bill and cannot use the funds unless he has an honorable discharge; he earned these benefits by being a Solider and they were taken away unfairly from him. 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. 6. The record of evidence shows that on 15 October and 22 October 2012, 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. 7. The applicant further contends his unit brought forth a total of four charges and drop one as time progressed; he was told it would be best to enter a plea of guilty to one of the charges. , 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. 8. The applicant also contends he has not been in trouble with the law and has been working for the past couple of months. The applicant is to be commended for his efforts. However, this contention 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 was it associated with the discharge at the time it was issued. 9. The applicant additionally contends if given another chance to serve in the armed forces he guarantees his appearance would be satisfactory. Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 10. The records show the proper discharge and separation authority procedures were followed in this case. 11. Furthermore, notwithstanding the propriety of the applicant's discharge, the record shows that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 24, characterization of service as general, under honorable conditions. In view of the foregoing, it is recommended that an administrative change be made to block 24, character of service to "under other than honorable conditions," as approved by the separation authority. 12. Except for the foregoing modification to the applicant's characterization of service, 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: 18 December 2013 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) AR20130010070 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1