IN THE CASE OF:  	Ms.

      BOARD DATE:  	17 April 2013

      CASE NUMBER:  	AR20120020054
___________________________________________________________________________

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 that the characterization of service was too harsh based on the applicant’s length and quality of her service to include her combat service 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 the reason for discharge was proper and equitable and voted not to change it.  



      
      
      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 her under other than honorable conditions discharge to a general, under honorable conditions discharge and a change in narrative reason to reflect family care plan.  

2.  The applicant states, in effect, that she would like to reenlist and she was discharged due to child custody issues.  She kept her chain of command informed of the situation between herself and her ex-husband.  She was afraid for her son to be with her ex-husband because he had been repeatedly arrested for aggravated assault, child neglect, child endangerment, and a few times for excessive speeding with their younger son in his care.  She was deployed when a few of the incidents occurred and came home to them while on leave and informed her chain of command.  She reenlisted and requested to be removed from the “married Army couples” program for her safety and her son’s safety.  Her new chain of command was also aware of her home situation.  She deployed again and changed her family care plan to reflect her divorce and her son went to her mother’s house.  Her ex-husband threatened her mother, took her son and disappeared for six months.  Her chain of command became involved to help find him; he had moved and left no forwarding information; additionally, his chain of command did not know where he was as a result civilian law enforcement became involved.  Once her child was located, her mother went to get him and kept him until the applicant redeployed.  She returned home on leave again and found out she was six months pregnant.  Her chain of command helped her get everything situated, and the rear detachment commander and first sergeant helped her with the situation concerning her ex-husband.  She feels she should be considered for upgrade because she reenlisted to keep doing what she loves to do.  She did everything she was told to do even after she was told the safety of her son didn’t matter.  She could not bring herself to leave him in harm’s way; she was given the ultimatum of deploying or ensuring the safety of her son, which was not fair.  She had previously requested to be discharged due to family care plan and was denied prior to deploying; she was told it was her problem. 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			22 October 2012	
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				25 May 2011
d. Reason/Authority/SPD/RE Code:		In Lieu Of Trial By Court-Martial, AR 635-200, 
Chapter 10, KFS, 4
e. Unit of assignment:				HQ and HQ CO, 1st BN, 10th AV REGT (R)
						(DET), 10th CBT BDE (R) (P), Fort Drum, NY	
f. Current Enlistment Date/Term:		26 March 2007, 6 years	
g. Current Enlistment Service:		4 years, 1 month, 28 days
h. Total Service:				6 years, 5 months, 21 days
i. Time Lost:					AWOL for a total of 19 days 
(110313 – 110331)   

j. Previous Discharges:			RA 041117 – 070325/HD	
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		91J10 Quartermaster and Chemical Equipment 
   Repairer
m. GT Score:					100
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Iraq (061016 - 070525), (070726 – 071105), 
   (081018 - 090510) and 
   Afghanistan (101117 – 110505)
q. Decorations/Awards:			AGCM, NDSM, ACM-2, ICM-3, GWOTSM, 
ASR, OSR-3
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant reenlisted in the Regular Army on 26 March 2007, for a period of 6 years.  She was 20 years old at the time of reentry and a high school graduate.  She served three tours in Iraq and a tour in Afghanistan.  She earned an AGCM and completed 6 years, 5 months, and   21 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 19 days of time lost for being AWOL. The applicant was also charged with willfully disobeying a lawful command on 5 March 2011 and 25 March 2011, to return her son to her son’s father.

2. On 9 May 2011, 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 9 May 2011, 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 her.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

3.  In her request for discharge, the applicant acknowledged that by submitting the request for discharge she was admitting she was guilty of the charges against her or of a lesser-included offense that also authorized the imposition of a bad conduct discharge.  She also confirmed her understanding that if her request for discharge was approved, she could receive an under other than honorable conditions discharge.  She further stated she understood that receipt of an under other than honorable conditions discharge could result in her being deprived of many or all Army benefits, her possible ineligibility for many or all benefits administered by the Veterans Administration, and she could be deprived of her rights and benefits as a veteran under State and Federal laws.  The applicant confirmed she had no desire to perform further military service and did not submit a statement in her own behalf.  

4.  On 17 May 2011, the separation authority approved the applicant's request for discharge and directed that she be reduced to the lowest enlisted grade and issued a UOTHC Discharge Certificate.  

5.  On 25 May 2011, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) she was issued shows she completed 6 years, 5 months, 21 days of creditable active military service and accrued 19 days of time lost due to being AWOL.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 12 January June 2011, on 3 occasions failed to go at the time prescribed to her appointed place of duty (100701, 101218 and 101219); on 2 occasions with intent to deceive made a false official statement to noncommissioned officers (100701); and with intent to defraud falsely alter a certain writing (101218).  The punishment consisted of reduction to the grade of E-1, forfeiture of $338 per month for one month, 14 days of extra (CG). 
      
2.  Five negative counseling statements dated between 1 July 2010 and 15 February 2011, for failing to be at her appointed place of duty, flag initiation, initiation of separation, lying to NCOs and going AWOL.

3.  An Ex Parte Order and Rule (NISI), dated 2 March 2011, concerning the modification of the custody of a minor child.

4. Email requesting hardship discharge, dated 12 March 2011.
      
EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 with a self-authored statement, four statements of support from family and friends, medical documents, final judgment and decree of divorce and a DD Form 214. 

POST-SERVICE ACTIVITY: 

The applicant provided no information concerning her post service activities.






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 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 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 an RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization and narrative reason of her discharge was carefully considered.  

2.  After examining the applicant’s record of service, her military records, the documents and the issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's discharge to general, under honorable conditions for the following reasons:  

	a. Length, quality and combat service:  The applicant successfully completed her first term of service and served 4 combat tours.  She had completed 4 years, 1 month, 28 days of her second enlistment which was a 6 year enlistment; thus the preponderance of her service was honorable while in a combat zone.

      b. The applicant contends that she requested a hardship discharge due to the stress of her marital situation an ensuing custody issues.  The applicant’s contention is confirmed by an email contained in her separation files.

3.   The applicant has expressed her desire to rejoin the Army.  However, 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. 

4.  The applicant has requested a change to the narrative reason for her discharge.  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.  
 	
5.  This recommendation is made after full consideration of all of the applicant’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 may now be too harsh and as a result is inequitable. It is recommended the Board grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable.





















SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review  	  Date: 17 April 2013     Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

Witnesses/Observers: NA 

Board Vote:
Character Change:  5	No Change:  0
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	General, Under Honorable Conditions
Change Reason to:		No Change
Change Authority for Separation:	N/A
Change RE Code to:	N/A
Grade Restoration to:	N/A
Other:		N/A















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)		AR20120020054



Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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