IN THE CASE OF:  	Mr. 

      BOARD DATE:  	26 April 2013

      CASE NUMBER:  	AR20120022130
___________________________________________________________________________

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 his service to include his combat service and as a result it is inequitable.  Accordingly, the Board voted to grant full 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.  This action entails restoration of grade to E-5/SGT.





      
      
      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 general, under honorable conditions.  

2.  The applicant states, in effect, that he is aware that the review board will not take into consideration his previous discharges, length of service, NCOERs, tours, or previous awards as reason to grant a characterization upgrade; however he is asking for an upgrade to a general, under honorable conditions discharge.  He would like his entire record to be considered.  His service to the Army was discontinued due to policies that he could not follow.  
The Department of VA does not allow former service-member to receive medical attention if the service member characterization is deemed negative.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			23 November 2012
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				16 July 2012
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:				Supply and Transportation Troop, Regimental 							Support Squadron, 11th Armored Cavalry 							Regiment, Fort Irwin, CA		
f. Current Enlistment Date/Term:		30 October 2007, 6 years
g. Current Enlistment Service:		04 years, 08 months, 16 days
h. Total Service:				11 years, 00 months, 06 days
i. Time Lost:					None
j. Previous Discharges:			RA (010711-040722/HD), RA 040723-								071019/HD)
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		92W10, Water Treatment Specialist
m. GT Score:					111
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Iraq (030402-040701, 051016-061028, and							080428-090716)
q. Decorations/Awards:			ARCOM-3, AAM-5, AGCM, NDSM, ICM-w/CS-							4, GWOTEM, NCOPDR, ASR, OSR-3
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			No
u. Prior Board Review:				No




SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 11 July 2001, for a period of 4 years.  He was 20 years old and had a high school diploma.  He was trained in and awarded military occupational specialty (MOS) 92W10, Water Treatment Specialist.  His record documents three ARCOMs, 5 AAMs, and an AGCM. 

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on     16 March 2011, the applicant was charged with the following offenses:

      a. wrongfully using marijuana (between 111110-111210)
b. failing to obey a lawful order by wrongfully possessing an aggressive or potentially aggressive breed of dog (120418)
c. with intent to deceive, making two false official statements to a SPC (120418)

2. On 26 June 2012, 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 for the good of the service in lieu of trial by court-martial, under AR 635-200, Chapter 10.

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 did not submit a statement in his own behalf.  

4.  On 27 June 2012, 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 16 July 2012, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 11 years and 6 days of creditable active military service.   



6.  The applicant’s record of service does not show any record of unauthorized absences or time lost.  

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 293, DD Form 214; self-authored statement; a memorandum from Next ERA Energy; three character reference letters; DD Form 2586 (Verification of Military Experience), 18 pages; college transcript, 3 pages; AMHRR documents, 13 pages; and the Fort Irwin Policy for privately owned pets/pictures, 7 pages.

POST-SERVICE ACTIVITY: 

The applicant contends that he is attending college.

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 his under other than honorable conditions discharge to general, under honorable conditions was carefully considered.  

2.  After examining the applicant’s record of service, his 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 and quality of service:  The applicant served 11 years and 6 months, thus the preponderance of his service was honorable.

	b. The record confirms the applicant received several awards, specifically 3 ARCOMs and 5 AAMs.  The applicant also served 3 combat tours in Iraq.  

	c. The applicant’s post-service accomplishments as provided in one of the documents with his application indicate he is continuing his college education.

3.  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 inequitable. 

4.  In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant full 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:   Record Review   Date:  26 April 2013	Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA
 
Board Vote:
Character Change:  3	No Change:  2
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:		E-5/SGT
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)		AR20120022130



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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