IN THE CASE OF:  

      BOARD DATE:  	5 April 2013

      CASE NUMBER:  	AR20120013107
___________________________________________________________________________

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.







      
      
      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 under other than honorable conditions to uncharacterized or general, under honorable conditions to honorable.

2.  The applicant states, in effect, he has have proven himself to the government, his family, peers and the United States Army that he is not that boy that was in the Army.  He has no excuse for what he did.  All he knows is that he will never be the same boy.  He works to provide for his family, and to serve a purpose.  He is married and has a child on the way.  He may not get back into the military for the rest of his life; however, he does not believe it is fair for the UOTH conditions to follow him and prevent him from doing something greater. He may not be able to reenlist; however, he wants it changed to a general or uncharacterized discharge.  He was never deployed nor did he ever attain an MOS. This is preventing him from going to college, getting a good job, and providing for his family.  All he wants is his discharge upgraded even if his reenlistment code stays the same. He is a man, a good one at that.  He made a mistake and had to live with; he should not have to work at McDonalds the rest of his life.  He wants and need a better so he can provide for his family.  He starts college this fall if his discharge is upgraded by then.  He does not believe it is right for the Army to allow a Soldier who has been AWOL for 4-6 years to come back and get a slap on the wrist.  He works so hard to provide for his wife, he cannot eat because he does not make enough to feed both of them.  He does not expect anyone to care, but he does expect to be treated fairly.  He is not asking to reenlist, just a discharge upgrade.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		5 July 2012
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			3 November 2011
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 Co, 2-19th Infantry Regiment, Fort Benning, GA 
f. Current Enlistment Date/Term:	OAD 22 February 2011, 4 Weeks
g. Current Enlistment Service:	00 years, 05 months, 12 days
h. Total Service:			00 years, 07 months, 25 days
i. Time Lost:				91 days
j. Previous Discharges:		ARNG (100115-100607), NA
IADT (100608-100820), NA
ARNG (100821-110221), NA 
     (Concurrent Service)
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	None
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Army National Guard on 15 January 2010, for a period of 8 years.  He was a high school graduate and 18 years old at the time.  His service record reflects he was ordered to active duty for training two times under the split option (100608-100820 and 110222-111103).  His record also shows that he received a NDSM and an ASR.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on     14 October 2011, the applicant was charged with absenting himself from his unit (AWOL) (110706-111005).

2.  On 14 October 2011, 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 unit commander recommended approval of an under other than honorable conditions discharge.  

3.  On 31 October 2011, 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. 

4.  The applicant was discharged from the Army on 3 November 2011, with a characterization of service of under other than honorable conditions.

5.  The applicant’s record of service indicates 91 days of lost time for being AWOL from 6 July 2011 until he surrendered on 6 October 2011.

6.  On 3 November 2011, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 5 months and 12 days of creditable active military service and accrued 91 days of time lost due to being AWOL.  

7.  The applicant was placed on excess leave for 21 days (111014-111103).



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1 There is no negative counseling’s or actions under the Uniform Code of Military Justice.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, dated 21 May 2012.

POST-SERVICE ACTIVITY: 

None provided with 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.  

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 documents no acts of significant achievement or valor and did not support the issuance of an uncharacterized or a general discharge by the separation authority and it does not support an upgrade to an uncharacterized or a general discharge at this late date.  

4.  The applicant was charged with AWOL and while still in entry-level status voluntarily requested discharge under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial.  In essence the applicant’s separation action was initiated while the applicant was in an entry-level status and the command had the option to characterize the service under other than honorable conditions or to describe it as uncharacterized.  The command opted to characterize the service as under other than honorable conditions.  AR 635-200, provides, except in cases of serious misconduct, that a Soldier’s service will be uncharacterized when the separation is initiated while the Soldier is in entry level status.  However, AWOL is a serious act of misconduct.

5.  The applicant contends his discharge is preventing him from going to college, getting a good job and providing for his family.  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 Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

7.  The applicant further contends it is right for the Army to allow a Soldier who has been AWOL for 4-6 years to come back and get a slap on the wrist.  The applicant bears the burden of the presentation of substantial and credible evidence to support this contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was treated differently than other Soldiers who had been AWOL.

8.  The applicant requested a change to the reentry eligibility (RE) code.  Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on AR 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. 

9.  At the time of discharge, the applicant received an under other than honorable conditions characterization of service.  Army Regulation 601-280 stipulates that an under other than honorable conditions discharge constitutes a non-waivable disqualification, thus 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.  Therefore, 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:  5 April 2013      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: NA

Witnesses/Observers: NA 

Board Vote:
Character Change:  2	No Change:  3
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: NA	
Change Reason to:	NA
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)		AR20120013107



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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