IN THE CASE OF:  	

      BOARD DATE:  	5 April 2013

      CASE NUMBER:  	AR20120014192
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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 to have his general discharge upgraded to honorable.  

2.  The applicant states, in effect, that everybody deserves a second chance.  He made the biggest mistake when he went AWOL.  After his deployment, all Soldiers had a tough time readjusting.  The action by his superiors could have been considered unjust.  He is not blaming anybody but himself.  He was young and made some bad decisions.  He has accomplished many things since the military.  He has worked at Wal-Mart Distribution Center for almost 
6 years, he has earned an Associate’s Degree and is pursuing a Bachelor’s Degree, he volunteers to coach high school football, he is a husband, and he was awarded full custody of his two kids.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			31 July 2012
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				7 June 2005
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:				Rear Detachment Company, 2d Battalion, 7th 							Infantry, Fort Stewart, GA		
f. Current Enlistment Date/Term:		20 November 2001, 03 years 
g. Current Enlistment Service:		03 years, 01 days, and 24 days 
h. Total Service:				03 years, 01 days, and 24 days
i. Time Lost:					145 days, Desertion (050225-050420) and
    AWOL x 2 (050119-050120 and 
   041013-050110)
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		92F10/Petroleum Supply Specialist 
m. GT Score:		`			99
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				NIF
q. Decorations/Awards:			NDSM, GWOTSM, ASR, PUC
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 Regular Army on 20 November 2001 for a period of 3 years and 00 weeks.  He was 19 years old at the time of entry and a high school graduate.  He served in  Iraq.  He completed 03 years, 01 month, and 24 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 145 days of time lost for being AWOL and desertion between 10 October 2004, until his apprehension on 19 April 2005.

2. On 18 May 2005, a court-martial charge was preferred against the applicant for violating Article 85 and 86 of the Uniform Code of Military Justice (UCMJ) based on the desertion and AWOL offenses outlined in the preceding paragraph.  On 18 May 2005, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and of the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

3.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge.  He also confirmed his understanding that if his request for discharge was approved, he could receive an under other than honorable conditions discharge.  He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.  The applicant confirmed he had no desire to perform further military service and he submitted a statement in his own behalf.  

4.  On 23 May 2005, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued a UOTHC Discharge Certificate.  

5.  On 7 June 2005, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 03 years, 1 month and 24 days of creditable active military service and accrued 145 days of time lost due to being AWOL.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   There are no positive urinalysis reports contained in the record:
 	
2.  Article 15:  None 
3.  Seven negative counseling statements dated between 18 February 2005 and 20 April 2005, for AWOL, failure to report, and disobeying an order.
      
4.  A General Officer Memorandum of Reprimand:  None 

5.  MP Report:  None  

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided a DD Form 149, a DD Form 214, a self-authored statement, a character reference letter, two DA Form 638s (Recommendation for Awards), and a copy of a Post Deployment Health Assessment, 5 pages 

POST-SERVICE ACTIVITY: 
The applicant states he has worked at Wal-Mart Distribution Center for almost 6 years, earned an Associate’s Degree, is pursuing a Bachelor’s Degree, volunteers to coach high school football, is a husband, and he was awarded full custody of his two kids.
 
REGULATORY AUTHORITY:

1.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 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 UOTHC 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.  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.  

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 a SPD Code of "KFS" will be assigned a RE Code of 4.
DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his characterization and a change to his reentry code 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 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 UOTHC 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 and it does not support an upgrade to an honorable or a general discharge at this late date.  

4.  The applicant contends that after his deployment, he and all the Soldiers had a tough time readjusting.  The analyst noted this contention, however, the applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  

5.  Furthermore, the applicant expresses that the action by his superiors could have been considered unjust.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the applicant produced any evidence or documentation to support the contention that the actions by his superiors were unjust.  The applicant’s statement alone does not overcome the government’s presumption of regularity in this case.  

6.  In addition, the analyst noted that the applicant met entrance qualification standards to include age.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

7.  Lastly, the analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

8.  Therefore, the characterization of service is both proper and equitable, recommend the Board deny relief.



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: 	Record Review	Date:  5 April 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: 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)		AR20120014192



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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