IN THE CASE OF:  	
      
      BOARD DATE:  	19 April 2013

      CASE NUMBER:  	AR20120020045
___________________________________________________________________________

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 his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, that he feels that his discharge is improper and unfair due to the tragic circumstances surrounding his actions toward the end of his military career.  While in Iraq, his platoon participated in over 360 combat missions.  While serving in Iraq, he was “stop-lossed.”  When he returned home on leave, he had a party at his house.  A friend was looking at his shotgun, inadvertently squeezed the trigger, and shot his friend’s 18 year old girlfriend.  She subsequently died from the injuries she sustained.  He and his friend were taken to the police station while authorities determined if any charges would be pursued.  His ETS was 3 weeks away.  Within two months of coming back from Iraq, his wife left him, the young girl died, and his grandfather passed.  He could not think clearly after all of this.  He ended up going AWOL.

He has literally gone to the VA in Lubbock, TX and cried, and begged for help but was turned away due to his discharge classification.  He believes that he suffers from symptoms of PTSD and he needs help.  He needs his benefits and also the services of the VA.  He is now borderline homeless. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			22 October 2012
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				20 September 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:	 			Delta Troop, 4th Cavalry, 1st Battalion, 5th 							Field Artillery, Fort Riley, KS		
f. Current Enlistment Date/Term:		11 July 2000, 4 years
g. Current Enlistment Service:		04 years, 05 months, 20 days
h. Total Service:				04 years, 05 months, 20 days
i. Time Lost:					271 days, AWOL (041115-050812)
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		19D10/Cavalry Scout
m. GT Score:					100
n. Education:					GED
o. Overseas Service:				SWA
p. Combat Service:				Iraq (030907-040929)
q. Decorations/Awards:			ARCOM, AAM-2, AGCM, NDSM, ICM 								GWOTSM, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 11 July 2000 for a period of 4 years.  He was 19 years old and had a high school equivalency (GED).  He was trained in and awarded military occupational specialty (MOS) 19D10, Cavalry Scout.  His record shows that he was awarded an ARCOM, two AAMs, and an AGCM.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 271 days of time lost for being AWOL from 15 November 2004 until his return on12 August 2005.

2. On 7 September 2005, a court-martial charge was preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) based on the AWOL offense outlined in the preceding paragraph.  On 7 September 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 submitted a statement in his own behalf.  

4.  On 14 September 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 20 September 2005, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 4 years, 5  months and 12 days of creditable active military service and accrued 271 days of time lost due to being AWOL.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There are no negative counseling’s or actions under the Uniform Code of Military Justice.
EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 214 with his application.

POST-SERVICE ACTIVITY: 

None provided with the application.  

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 an 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 within two months of coming back from Iraq, his wife left him, a young girl was accidently killed in his presence with his shotgun, and his grandfather passed.    However, he 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.  The applicant contends the discharge was unjust because of the tragic circumstances (over 360 combat missions, he was stop-lossed, and had PTSD), surrounding his actions toward the end of his military career.  However, the service record contains no evidence of PTSD  diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition. 

6.  In addition, there are many Soldiers who were stop-lossed and served in combat that successfully completed military service.  Therefore, 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 this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.   

7.  Further, 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.  

8.  Lastly, a review of the service record does not reveal any evidence of arbitrary or capricious actions by the applicant’s command.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   

9.  Therefore, the RE code and characterization of service being both proper and equitable, recommend the Board deny relief.




SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: 	Record Review   Date:  19 April 2013 	 Location: Washington, DC

Did the Applicant Testify?  No

Counsel: None

Witnesses/Observers: NA 

Board Vote:
Character Change:  1	No Change:  4
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: No Change
Change RE Code to: No Change	
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)		AR20120020045



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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