IN THE CASE OF:  	 Mr. 

      BOARD DATE:  	15 May 2013

      CASE NUMBER:  	AR20120022133
___________________________________________________________________________

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 honorable and a change to the narrative reason for separation.

2.  The applicant states, in effect, he was having marital problems and wanted a divorce.  His discharge was inequitable because it was based on false accusations, the agenda of the legal advisors from the 95th CA and the influence of his spouse.  His previous 16 years of service, a clean stellar record or the character reference letters were not considered at the time the decision was made to discharge him.  He respectfully requests his records and past military performance be reviewed and make the decision to upgrade his discharge to honorable.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		30 November 2012
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			28 September 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:			HHC, 95th Civil Affairs Brigade, Fort Bragg, NC
f. Current Enlistment Date/Term:	16 June 2007, 6 years		
g. Current Enlistment Service:	5 years, 3 months, 13 days
h. Total Service:			18 years, 6 months, 18 days/block 12e on the DD 						Form 	214 total prior inactive service, is incorrect and 						should read 3 years, 1 month, 0 days
i. Time Lost:				None
j. Previous Discharges:		ARNG-(960321-970209)/UNC									IADT-(970210-970529)/HD									ARNG-(970530-990420)/HD									RA-(990421-020729)/HD										RA-(020730-050628)/HD										RA-(050629-070615)/HD
k. Highest Grade Achieved:		E-8
l. Military Occupational Specialty:	38B1P, Civil Affairs Specialist/12B1P, Combat 							Engineer
m. GT Score:				93
n. Education:				HS Graduate
o. Overseas Service:			Korea/Southwest Asia
p. Combat Service:			Iraq (070331-070905)
q. Decorations/Awards:		BSM, MSM-2, ARCOM-5, AAM-5, AGCM-4, NDSM, 						ICM-W/CS, GWOTEM, GWOTSM, KDSM, NPDR-3, 						ASR, OSR, JMUA, MUC, PRPUC, CAB
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		No
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Army National Guard on 21 March 1996, for eight years. He was 17 years old at the time and a high school graduate.  He enlisted in the Regular Army on       21 April 1999, for a period of 4 years.  His last reenlistment was on 16 June 2007, for a period of 6 years, he was 29 years old at the time and a high school graduate.  He was initially trained in and awarded military occupational specialty (MOS) 12B1P, Combat Engineer and subsequently as a 38B3P, Civil Affairs Specialist.  His discharge was initiated at Fort Bragg, NC.  His record also shows he served a combat tour and earned several awards that included a BSM, MSM-2, ARCOM-5, AAM-5, AGCM-4 and a CAB.  He attained the rank of 1SG/E-8.

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 digital signature.  

2.  The DD Form 214 indicates that on 28 September 2012, 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 available record does not show any record of actions under the UCMJ or unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains eleven Successful/Among the Best NCO Evaluation Reports covering the periods of 1 June 2001 through 31 October 2011.

2.  The record does not contain any counseling statements.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, dated 9 November 2012; DD Form 214, dated   28 September 2012; Documents from his Army Human Resource Record (AMHRR), consisting of one hundred forty-two pages which included a DA Form 2-1, four DA Forms 1059 (Service School Academic Evaluation Report); Citation, Bronze Star Medal; DA Forms 638 (Recommendation for Award); Citations, Meritorious Service Medal; Citations, Army Commendation Medal; Citations, Army Achievement Medal; Orders, Army Good Conduct Medals; Orders, Combat Action Badge, Parachutist Badge, Sapper Tab; Certificates of Achievement, Training, Appreciation, Completion; Diplomas, Basic Engineer Course, Airborne Course, Civil Affairs Course, Individual Terrorism Awareness Course, Instructor Training Course, Small Group Instructor Training Course, Sapper Leader; two Memoranda for Record; eleven DA Forms 2166-8 (NCO Evaluation Report); nine Support/Character Statements; four Enlistment/Reenlistment Contracts; Promotion Orders; and four Discharge Certificates.

POST-SERVICE ACTIVITY: 

The applicant did not provide any with the application.

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 available military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for separation.  

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 digital 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 requested a change to the narrative reason for separation. However, the narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 10, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," the separation code is "KFS," and the reentry code is "RE 4."  

4.  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, separation code, entered in block 26, and RE Code, entered in block 27 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.  The applicant contends he was having marital problems and wanted a divorce; his discharge was inequitable because it was based on false accusations, the agenda of the legal advisors from the 95th Civil Affairs and the influence of his spouse; his previous 16 years of service, a clean stellar record or the character reference letters were not considered at the time the decision was made to discharge him.  The applicant's contentions were carefully considered.  However, there is insufficient evidence available in the official record to make a determination upon these contentions.  Moreover, there is a presumption of regularity in the conduct of governmental affairs.  This presumption is applied in all Army discharge reviews 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 contentions.  There is no evidence in the record, nor has the applicant produced any evidence to support these contentions that he was unjustly discharged.

6.  The applicant requests his records and past military performance be reviewed in order upgrade his discharge to honorable.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceedings were carefully considered.  However, this service was determined not to be sufficiently mitigating to overcome the reason for discharge and the characterization of service granted because the specific charges and specifications are not in the available records.

7.  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.

8.  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:  15 May 2013      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: NA

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:	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)		AR20120022133



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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