IN THE CASE OF:  	Mr. 

      BOARD DATE:  	26 April 2013

      CASE NUMBER:  	AR20120021548
___________________________________________________________________________

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 general, under honorable conditions.

2.  The applicant states, in effect, he requests an upgrade to receive VA benefits for service connected disabilities from combat duty.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		28 November 2012
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			9 October 2003
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:			626th Forward Support Battalion, Fort Campbell, KY
f. Current Enlistment Date/Term:	14 November 2000, 4 years
g. Current Enlistment Service:	2 years, 10 months, 26 days
h. Total Service:			2 years, 10 months, 26 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	27E10, Tow/Dragon Repairer
m. GT Score:				99
n. Education:				GED
o. Overseas Service:			Southwest Asia
p. Combat Service:			Kuwait/Iraq (030226-030929)
q. Decorations/Awards:		NDSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 14 November 2000, for a period of 4 years.  He was 20 years old at the time of entry and a high school graduate.  On 3 December 2001, he reenlisted for a period of 3 years and was 25 years old at the time. He was serving at Fort Campbell, KY, when his discharge was initiated.  His record also shows that he served a combat tour and did not earn any personal awards.





 
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant’s signature.  

2.  The DD Form 214 indicates that on 23 August 2000, the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the Service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  Further, the DD Form 214 shows a Separation Code of KFS (i.e., in lieu of trial by court-martial) with a reentry eligibility (RE) code of 4.

3.  The applicant’s record does not show any record of actions under the UCMJ or unauthorized absences or time lost.

4.  On 30 September 2003, DA, HQS, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, KY, Orders Number 273-0011, discharged the applicant from the Army effective 9 October 2003.  The applicant was reduced to the lowest enlisted rank.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A negative counseling statement dated 21 August 2003, for disrespecting and disobeying a superior commissioned officer.

2. The available record does not show any actions under the Uniform Code of Military Justice.

3.  A partial DD Form 458 (Charge Sheet) with allied documents five (pages), annotating what the applicant was charged with. 

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided two DD Forms 293, dated 30 October 2012; Letter, Chief, Congressional and Special Actions, dated 26 November 2012, with allied congressional documents, five (5) pages; Letter, Department of Veterans Affairs, dated 18 September 2012, three (3) pages; Department of Veterans Affairs Rating Decision, two (2) pages, dated            13 September 2012; four (4) DA Forms 2823 (Sworn Statement), all of them dated 20 August 2003; eight (8) Character/Support Statements, dated 29 October 2012, 15 October 2012,       28 September 2009, 30 September 2009, 13 September 2009, 30 September 2009, 
30 September 2009, 25 September 2009, printed conversations, undated, two (2) pages; and e-campus, schedule and grades, eight (8) pages.

POST-SERVICE ACTIVITY: 

The applicant provides documents which indicated he attended college online. 

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 the characterization of his discharge was carefully considered.  However, after examining the applicant’s military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge.  Barring evidence to the contrary, it appears all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
3.  The applicant desires to receive VA benefits.  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.
  
4.  If the applicant desires a personal appearance, it is his responsibility to meet the burden of proof since the evidence is not available in the official record.  The applicant will need to provide the appropriate documents or other evidence (i.e., discharge packet) sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.

5.  Therefore, based on the available evidence and the presumption of government regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review     Date:  26 April 2013     Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: NA

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:	No Change
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)		AR20120021548



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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