Applicant Name:  ?????

Application Receipt Date: 2011/09/26	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states:  “l am writing this letter to inform you of my absence without official leave from 8/21/2002 to 03/28/2003. I would like to explain the circumstances leading up to this absence. In January 2002, my family and I were reassigned to Ft Wainwright Alaska. During my brief stay there which was about 10 days my youngest daughter only 5 1/2 months became ill. She was misdiagnosed and passed away on February 3, 2002. The military sent me back to California to arrange her burial and then report to Ft Irwin in Barstow, California. During this difficult time my wife at the time and I were experiencing different hardships. This in turn was affecting our marriage. We contacted the military at Ft. Irwin and arranged for us to go there for paperwork reasons. Upon our visit to Ft. Irwin we deeply expressed our concern for each other and the wellbeing of our family. Which in return we were given an extended leave which was helpful but we were looking for psychological and marriage counseling from the military. We were advised that they would look into assistance but after that visit we never received a call. The extreme grief of our loss and the added stress to our family caused a separation between my wife and I which caused me to make wrong decisions. During our separation the grief overcame me. I was very depressed and I my mind was in a cloud. I wasn’t making rational decisions and my judgment was impaired. I had continued to keep in touch with military personnel who knew my whereabouts. I asked them to come to where I was and to pick me up and they never showed. I loved and enjoyed my military career and to this day I miss it. I feel that from the day my daughter passed until the day I got out of the military I was treated with an injustice. I feel I was a model soldier and had a good career going. I think the way the military treated me did not represent this. Therefore I hope you can take this into consideration and can help me in any way possible. In addition I have letters and documentation supporting my claim.”

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 030401
Discharge Received: 			   Date: 030417   Chapter: 10    AR: 635-200
Reason: In Lieu of Trial by Court-Martial	   RE:     SPD: KFS   Unit/Location: HHC, US Army Garrison, Fort Irwin, CA 

Time Lost: 221 days.  AWOL (020821-030328), surrendered.  Not recorded in the applicant’s DD Form 214.

Article 15s (Charges/Dates/Punishment): None

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  26
Current ENL Date: 010725    Current ENL Term: 4 Years  ?????
Current ENL Service: 	01 Yrs, 01 Mos, 15 Days ?????
Total Service:  		07 Yrs, 05 Mos, 16 Days ?????
Previous Discharges: 	RA 951102-990722/HD
                                       RA 990723-010724/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 92A10/Automated Log Spc   GT: 98   EDU: HS Grad   Overseas: Alaska   Combat: None
Decorations/Awards: NDSM, NCOPDR, ASR

V.  Post-Discharge Activity
City, State:  La Habra, CA
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record does not contain the DD Form 458, Charge Sheet that was used to separate him from the Army.  However, the record contains the charge sheet used to drop him from the rolls of the Army which indicates that on 21 August 2002 the applicant departed AWOL.  DA Form 615, AWOL Returnee Form, indicates he surrendered and returned to his unit on 28 March 2003.  
       
       On 28 March 2003, 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.  Further, the applicant indicated he understood that 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 submitted a statement in his own behalf.  The company and battalion commanders, both recommended a general, under honorable conditions discharge.  
       
       On 7 April 2003, the separation authority approved the Chapter 10 request and directed a discharge with a characterization of service of under other than honorable conditions.  The applicant was to be reduced to the lowest enlisted rank. 

       b.  Legal Basis for Separation:  
       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 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.  

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s available military records during the period of enlistment under review, the issues and the documents submitted with the application, the analyst recommends that the applicant’s characterization of service be partially upgraded to general, under honorable conditions.  
       
       This recommendation was made after full consideration of the former Soldier’s faithful and honorable service, as well as the record of misconduct.  The evidence in this case supports a conclusion that the applicant’s characterization of service was too harsh, and as a result it is inequitable.  
       
       While the applicant's misconduct is not condoned, the analyst noted that the overall length and quality of the applicant's service, the circumstance surrounding the applicant’s misconduct, specifically the death of his daughter (020203), and the recommendations of his company and battalion commanders, mitigated the discrediting entry in the service record.  The applicant served seven and a half years and achieved the rank of Sergeant without any other incidents of misconduct or UCMJ actions.
       
       The applicant also requests that the narrative reason for his discharge be changed to harsdship.  However, the applicant was separated under the provisions of Chapter 10, AR 635-200 with an under other than honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial,” and the separation code is "KFS."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  
       In view of the foregoing, the analyst recommends to the Board that the applicant’s characterization of service be partially upgraded to general, under honorable conditions.  However, the reason for discharge remains both proper and equitable.  This action entails a restoration of grade to SGT/E-5. 

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 23 March 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: Mr. Macario Dimayuga (DAV), 8810 Rio Diego Drive, Suite 1160, San Diego, CA 92108

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 214, death certificate, seven supporting statements, and a self-authored statement.

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service, the recommendations of his immediate commanders, and the circumstances surrounding his misconduct, specifically the unexplained death of his daughter, and as a result it is inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined that the reason for discharge was proper and equitable and voted not to change it.  This action entails restoration of grade to E-5/SGT.
        
IX.  Board Decision						
Board Vote:
Character - Change 4    No change 1
Reason -     Change 0    No change 5
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: E-5/SGT.

XI.  Certification Signature
Approval Authority:

EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board


BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder

Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20110019645
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