IN THE CASE OF:	  

		BOARD DATE:	       18 September 2008

		DOCKET NUMBER:  AR20080010181 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of earlier requests for correction of the narrative reason for his discharge; reinstatement in the Army to allow him to complete his enlistment in the Active Guard Reserve (AGR) program or as a Chaplain candidate; rescission of his separation orders; and removal of the bar to his reenlistment.  

2.  The applicant also requests, as new issues, that the Board predate his possible 2008 enlistment to October 2006 or change his November 2003 enlistment termination date to October 2007; change his separation program designator (SPD) code to either KBK, KCF, KGM, KGX, or KHC or grant a waiver so he can enlist in the Regular Army or the U.S. Army Reserve (USAR); and that item 14 (Military Education) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show he completed the Personnel Administrative Course.

3.  The applicant states, in effect, that his charges resulted from vindictiveness and harassment and that his chain of command violated Army regulations and procedural or administrative processes by failing to provide the General Court-Martial Convening Authority all records required in connection with his 2003 discharge.  He also reiterated contentions that were previously considered by the Board.  Particularly, his mental status condition made him commit the offenses.    



4.  The applicant provides memoranda, dated 15 January 2008 and 9 July 2008; a memorandum, dated 30 October 2003, which shows he attended Combat Stress Unit in October 2003; a letter, dated 9 July 2008 with 13 enclosures outlined on page 10 of his application; service personnel records; and a copy of his DD Form 214.  

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070000992, on 7 August 2007; and Docket Number AR20060006173, on 9 November 2006.

2.  The applicant’s submissions are new evidence which will be considered by the Board.  

3.  The applicant served honorably on active duty in the U.S. Navy from 1 August 1989 through 30 September 1996, and he was credited with completing 7 years and 2 months of creditable active service.

4.  The applicant enlisted in the USAR on 27 August 2001 and was ordered to active duty in an AGR status for a period of 3 years, effective 4 November 2002.  The applicant was trained in and awarded military occupational specialty (MOS) 75B (Personnel Administrative Specialist), which was later designated MOS 42A (Human Resources Specialist); promoted to the rank of sergeant (SGT/E-5), effective 12 November 2002; and served in Iraq from 19 April 2003 to 
12 November 2003.

5.  On 4 November 2003, charges were preferred against the applicant for willfully disobeying a lawful order from his superior commissioned officer to report to his superior noncommissioned officer; willfully disobeying a lawful order from his superior commissioned officer not to leave Mosul Airfield; resisting arrest by running from a roving patrol that was authorized to apprehend the applicant; and wrongfully violating force protection standards by exiting the Mosul Airfield alone and without the required uniform, individual body armor and Kevlar helmet, which was prejudicial to good order and discipline in the Armed Forces.

6.  On 4 November 2003, the applicant consulted with counsel and voluntarily submitted a request for discharge in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.  In his request for discharge in lieu of trial by court-martial, the applicant acknowledged, in pertinent part, that he had been afforded the opportunity to consult with an appointed counsel; that counsel had fully advised him of the nature of his rights under the Uniform Code of Military Justice and of the elements of the offense thereto; the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilt; and the maximum permissible punishment if found guilty.  In the request for discharge, the applicant also acknowledged his guilt of a charge against him or of a lesser-included offense therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant also indicated that under no circumstances did he desire further rehabilitation or have a desire to perform further military service.  In addition, he acknowledged that the decision to submit a request for discharge in lieu of trial by court-marital was made of his own free will, he had not been subjected to any coercion whatsoever by any person, and that submission of the request for discharge was his own decision.  The applicant also acknowledged he was advised that he may submit any statements he desired in his own behalf and they would accompany his request for discharge.  Apparently, he elected not to submit a statement on his own behalf.

7.  The separation authority subsequently approved the applicant’s request for discharge in lieu of trial by court-martial.  The applicant was reduced to the rank of private (PVT/E-1), discharged on 26 November 2003 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and issued an under other than honorable conditions discharge.  The applicant’s records show that he completed 1 year and 23 days of creditable active service during the period under review.

8.  The applicant provided a DA Form 1059 which shows he completed the 
8-week Personnel Administrative Course in May 2002.

9.  The applicant provided a 30 October 2003 Memorandum for Record from his commander.  This memorandum indicated that after the applicant had returned from a 3-day rest and recreation from the CSC (113th Combat Stress Unit) he was verbally informed to report back to his section and continue to do his job.  He did not follow these orders, he failed to report to his place of duty, and he went back to 113th CSC.  He was then escorted back to HSC (Headquarters Service Company TOC (tactical operations center) by the 113th CSC doctor.  At that time, the applicant was informed that as long as he was a part of the unit he would need to do his job and return to the S1.  He expressed that he did not want to return to the S1 and would even “consider hurting himself to stay out of the S1 section.”  After hearing that, the Combat Stress doctors both agreed that the applicant needed to be away from the S1 environment and watched.  It was decided to keep the applicant in the company TOC until they could figure out what to do.  The applicant was verbally informed of this and he was told to get a cot from supply.  The applicant left the area and ended up outside the perimeter. He was picked up by an infantry unit and detained until the military police picked him up and returned him to the company area.  He was put under armed guard watch.  The applicant was given a written counseling for failure to follow a lawful order.      

10.  On 13 April 2005, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his under other than honorable conditions discharge. On 16 December 2005, the ADRB determined that the reason for the applicant’s discharge was proper and voted not to change it.  The ADRB also determined that the characterization of service was too harsh and voted to grant relief in the form of an upgrade of characterization of service to fully honorable and to restore the applicant’s grade to sergeant (SGT/E-5).

11.  The applicant was issued a DD Form 214 to show that he was honorably discharged on 26 November 2003, under the provisions of Army Regulation
635-200, chapter 10, in lieu of trial by court-martial, in the grade of SGT/E-5.  This document also shows a Separation Code of “KFS” and Reentry Code of “4.” This document further shows that he was credited with 1 year and 23 days net active service for this period and 1 year, 2 months, and 7 days total prior inactive service.  Item 14 on this DD Form 214 shows the entry, “NONE//NOTHING FOLLOWS.”

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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 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 under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The regulation states, in pertinent, that an enlisted member may not be referred for physical disability processing when action has been started that may result in his separation with a discharge under other than honorable conditions unless the General Court-Martial Authority finds that the disability is the cause, or substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions.

14  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. This regulation identifies the SPD code of "KFS" as the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  

15.  The regulation states the reason for discharge based on separation code “KBK” is “Completion of required active service” and the regulatory authority is Army Regulation 635-200, chapter 4.  

16.  The regulation states the reason for discharge based on separation code “KCF” is “Attend school” and the regulatory authority is Army Regulation 
635-200, chapter 5-17.  

17.  The regulation states the reason for discharge based on separation code “KGM” is “Accept commission of Warrant in the Army” and the regulatory authority is Army Regulation 635-200, chapter 16-1a(1) or (2).  

18.  The regulation states the reason for discharge based on separation code “KGX” is “Enter Officer Training Program” and the regulatory authority is Army Regulation 635-200, chapter 16-2.  

19.  The regulation states the reason for discharge based on separation code “KHC” is “Immediate reenlistment” and the regulatory authority is Army Regulation 635-200, chapter 16-3.  

20.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), provides, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned Reentry Eligibility (RE) codes based on their service records or the reason for discharge.  An RE Code of RE-4 applies to a person separated from the last period of service with a non-waivable disqualification and who is ineligible for enlistment.
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his charges resulted from vindictiveness and harassment and that his chain violated Army regulations and procedural or administrative process by failing to provide the General Court-Martial Convening Authority all records required in connection with his 2003 discharge relate to evidentiary and procedural matters that could have been addressed and conclusively adjudicated in a court-martial appellate process.  However, the applicant voluntarily requested discharge in lieu of trial by court-martial.  


2.  The applicant’s contention that his mental status condition made him commit the offenses was noted.  However, it appears there is no evidence of record that the applicant had a mental condition that would have caused misconduct, especially since he is now asking to return to active duty.  There is no evidence the General Court-Martial Authority did not consider his mental status evaluation. 

3.  The applicant’s narrative reason for separation was administratively correct and in conformance with applicable regulations at the time of his separation.  
 
4.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  He was discharged under other than honorable conditions.  

5.  On 16 December 2005, the ADRB also determined that the characterization of service was too harsh and voted to grant relief in the form of an upgrade of characterization of service to fully honorable and to restore the applicant’s grade to sergeant.  He provides insufficient evidence to show why further relief should be granted.
 
6.  Evidence of record shows the applicant completed the 8-week Personnel Administrative Course in May 2002; therefore, item 14 on his DD Form 214 should be corrected to show this course.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___xx___  ___xx___  ___xx___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  With regard to the applicant’s request to amend item 14 on his DD Form 214, the Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result the Board recommends that item 
14 on his DD Form 214 be corrected to show he completed the 8-week Personnel Administrative Course in May 2002. 

2.  As regards the applicant’s requests that the Board predate his possible 2008 enlistment to October 2006 or change his November 2003 enlistment termination date to October 2007; change his SPD code to either KBK, KCF, KGM, KGX, or KHC or grant a waiver so he can enlist in the Regular Army or the USAR, the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 

3.  As regards the applicant’s request for reconsideration of his requests for correction of the narrative reason for his discharge; reinstatement in the Army to allow him to complete his enlistment in the Active Guard Reserve (AGR) program or as a Chaplain candidate; rescission of his separation orders; and removal of the bar to his reenlistment, the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decisions of the ABCMR set forth in Docket Number AR20060006173, dated 9 November 2006 or Docket Number AR20070000992, dated 7 August 2007.




      _______ _   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080010181



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ABCMR Record of Proceedings (cont)                                         AR20080010181



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