IN THE CASE OF:  	Mr. 

      BOARD DATE:  	1 May 2013

      CASE NUMBER:  	AR20120022155
___________________________________________________________________________

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 did not receive the care he should have for Post Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI) after returning from Afghanistan. These conditions resulted in his wrongful behavior.   

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		23 November 2012
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			16 November 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:			A Co, 1-12th Infantry Regt, Fort Carson, CO
f. Current Enlistment Date/Term:	30 December 2008, 6 years, 14 weeks 		
g. Current Enlistment Service:	2 years, 6 months, 13 days
h. Total Service:			4 years, 6 months, 29 days
i. Time Lost:				116 days
j. Previous Discharges:		USMCR-000622-010522/NA									USMC-010523-020708/NA
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				101
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan (090529-100608)
q. Decorations/Awards:		ARCOM, NDSM, ICM-W/2 CS, GWOTSM, ASR 						OSR, NATO MDL, CIB
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 24 August 2005, for a period of 6 years, 14 weeks.  He was 26 years old at the time of entry and a high school graduate.  His discharge was initiated at Fort Carson, CO.  His record also shows that he served a combat tour and earned several awards that included an ARCOM, and a CIB.  He attained the rank of SPC/E-4.




SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet, which indicates that on      18 July 2011, the applicant was charged with absenting himself from his unit (AWOL) x 5 (101109-101213, 101217-101221, 110211-110212, 110215-110309, 110622-110623); and wrongfully using cocaine (100908-100915).  On 28 September 2011, the applicant was additionally charged with absenting himself from his unit (AWOL) (100729-100926).

2.  On 5 October 2011, the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, AR 635-200 in lieu of trial by court-martial.  In this request, the applicant admitted guilt to the offense, or a lesser-included offense.  The applicant indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran’s benefits. The applicant did not submit a statement on his own behalf.  The applicant’s chain of command recommended approval of the Chapter 10 request with an   under other than honorable conditions discharge.  
 
3.  On 31 October 2011, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 16 November 2011, with a characterization of service of under other than honorable conditions under the provisions of Chapter 10,             AR 635-200, in lieu of trial by court-martial, a Separation Program Designator code (SPD) of KFS and a RE code of 4.

5.  The applicant's record shows he was AWOL during the periods 9 November 2010 through       13 December 2010, 17 December 2010 through 21 December 2010, 11 February 2011 through 12 February 2011, 15 February 2011 through 9 March 2011, 22 June 2011 through    23 June 2011, and 2 August 2011 through 26 September 2011 for 116 days, mode of return on the previous AWOLs are unknown; however, he surrendered on his last period of AWOL.  The applicant was placed in pre-trial confinement on 28 September 2011 through 3 November 2011, for 35 days, which was not reflected as lost time.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record does not contain any actions under the Uniform Code of Military Justice.

2.  Three negative counseling statements done between 8 November 2010 through 25 July 2011 for failing a urinalysis test, being AWOL on four occasions and failing to report to formations.

3.  A positive urinalysis report is contained in the record, IU, Inspection Unit, 15 September 2010, for cocaine.
 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 10 August 2012; self-authored statement, five (5) pages, dated 10 August 2012; Army Military Human Resource Record, eight (8) pages; Chronological Record of Medical Care, fifty-five (55) pages; Medical Center LLP, Medical Documents, seventeen (17) pages, dated 19 November 2012.  

POST-SERVICE ACTIVITY: 

None provided with 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 a RE Code of 4.




DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his characterization of service 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 for the good of the service 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 under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance.  His record documents he served a tour in combat. however, did not support the issuance of an honorable discharge by the separation authority and it does not support an upgrade of a honorable discharge at this late date. 

4.  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."  

5.  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.
 
6.  The applicant contends he did not receive the care he should have for PTSD and TBI after returning from Afghanistan. However, the service record contains no evidence of PTSD or a TBI diagnosis while on active duty.  The independent medical document that diagnosed the applicant with PTSD is acknowledged; however, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted.  

7.  Further, AR 635-200, paragraph 10-6, states that a medical examination is not required but may be requested by the Soldier under AR 40-501, Chapter 8; however, the record does not indicate that a medical nor a mental examination was requested.

8.  The records show the proper discharge and separation authority procedures were followed in this case.  

9.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.  

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review     Date:  1 May 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)		AR20120022155



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1