IN THE CASE OF:  	Mr. 

      BOARD DATE:  	24 April 2013

      CASE NUMBER:  	AR20130000264
___________________________________________________________________________

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 learned his wife had an affair, was four months pregnant when he returned home, he made a mistake and used drugs.  He asks that his seven years of service be taken in consideration and not the time after he came home.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		20 December 2012
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			25 October 2004
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, DISCOM, 82nd  Airborne Division, 							Fort Bragg, NC
f. Current Enlistment Date/Term:	3 December 2001, 3 years
g. Current Enlistment Service:	3 years, 10 months, 28 days
h. Total Service:			6 years, 9 months, 21 days
i. Time Lost:				None
j. Previous Discharges:		RA (980105-011202)
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	92A10 Automated Logistical Spec
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (030804-040105)
q. Decorations/Awards:		ARCOM, AAM, AGCM-2, NDSM, GWOTEM, 							GWOTSM, NPDR, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 5 January 1998, for a period of 4 years.  He was 21 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 Bragg, NC, when his discharge was initiated.  His record also shows that he served a combat tour and earned several awards including an ARCOM, AAM and an AGCM-2.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on     17 September 2004, the applicant was charged with the following offenses:

     a. without authority, failing to go at the time prescribed to his appointed place of duty (040916)

     b. willfully disobeying a lawful order from 1SG H (040916)

     c. wrongfully using cocaine (040915-040916)

     d. wrongfully stealing nine live rounds of 5.56mm ammunition, military property of the  U.S. Government (040601-040916)

2.  On 17 September 2004, 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’s documentation recommended approval of the Chapter 10 request is not contained in the available record and the analyst presumed government regularity in the discharge process.  

3.  On 30 September 2004, the separation authority approved 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 25 October 2004, with a characterization of service of under other than honorable conditions under the provisions of Chapter 10,             AR 635-200, by reason of in lieu of trial by court-martial, a Separation Program Designator code (SPD) of KFS and an RE code of 4.

5.  The applicant's record shows he was placed in pre-trial confinement on 16 September 2004. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A Field Grade Article 15, dated 22 June 2004, for wrongfully using cocaine (040508-040511); his punishment consisted of reduction E-4, forfeiture of $946 pay x 1 month, extra duty for 45 days.

2.  A counseling statement dated, 16 September 2004, for failing to report x 2, wrongfully using cocaine and attempting suicide.

3.  A pre-trial confinement order, dated 16 September 2004.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 30 December 2011. 

POST-SERVICE ACTIVITY: 

None provided 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 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, and showed acts of significant achievement and valor; however, these incidents did not support the issuance of an honorable discharge by the separation authority and it does not support an upgrade to a honorable discharge at this late date.  

4.  The applicant contends he learned his wife had an affair, was four months pregnant when he returned home, he made a mistake and he used drugs.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  
 
5.  The applicant further contends his seven years of service should be taken in consideration and not just the time after he returned home.  However, AR 635-200, paragraph 10-8, states that a discharge under other than honorable conditions is normally considered appropriate.  Also, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment.

6. The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge under review.      

7.  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   The character of the applicant’s discharge is commensurate with his overall service record. 
 
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:  24 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)		AR20130000264



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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