IN THE CASE OF:  	Mr. 

      BOARD DATE:  	17 May 2013

      CASE NUMBER:  	AR20130000583
___________________________________________________________________________

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.

2.  The applicant states, in effect, he feels the discharge he received was unwarranted for the following reasons:

     a.  This was the only time in sixteen and a half years of active and active reserve service that he got into any trouble, he had no other UCMJ actions of any type.

     b.  He believes there was command influence by the DIVARTY Commander on the Battery Commander  to push for a General Court-Martial (GCM), rather than some other type of punishment.

     c.  Since his discharge, he has held jobs involving access to high value items of all types, access to homes, businesses, warehouses, and other areas where such items are held or stored without incident.

     d.  He believes this isolated incident was very bad judgment, and given the chance to correct it, he never would have done such a stupid thing.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		28 December 2012
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			13 May 1998
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:			F Battery, 26th, Field Artillery, APO AP 96224
f. Current Enlistment Date/Term:	22 November 1996, 5 years
g. Current Enlistment Service:	1 year, 5 months, 22 days
h. Total Service:			17 years, 5 months, 22 days
i. Time Lost:				None
j. Previous Discharges:		USAR-(801124-820304)/NA									RA-(820305-860219)/HD										RA-(860220-891025)/HD										RA-(891026-961121)/HD
k. Highest Grade Achieved:		E-6
l. Military Occupational Specialty:	31U10, Signal Support System Specialist/11B10, 						Infantryman/00R10, Recruiter/Retention NCO
m. GT Score:				116
n. Education:				Associate’s Degree
o. Overseas Service:			Korea/Germany/Southwest Asia
p. Combat Service:			Saudi Arabia-(900829-910325)
q. Decorations/Awards:		ARCOM, AAM-8, AGCM-5, NDSM, SWASM-W/2 						BSS, NPDR-2, ASR, OSR-3, KLM-SA, KLM-KU
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 U.S. Army Reserve on 24 November 1980, for 6 years  He was 17 years old at the time of entry and a had not completed high school.  The applicant enlisted in the Regular Army on 5 March 1982, for a period of 4 years.  He was 18 years old at the time of entry and a high school graduate.  His last reenlistment on 22 November 1996 was for a period of 5 years and he was 33 years old at the time.  He was initially trained in and awarded military occupational specialty (MOS) 11B10 Infantryman and subsequently as a 00R10, Recruiting/Retention NCO and achieved the rank of SSG/E-6.  He was serving in Korea, when his discharge was initiated.  His record also shows that he served a combat tour and earned several awards including an ARCOM, AAM-8 and an AGCM-5.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on      3 April 1998, the applicant was charged with the following offenses:

     a.  with intent to deceive, making a false official statement to 2LT RSL, that he did not know the location of a certain laptop computer (980401)

     b.  with intent to deceive, making a false official statement to SSG DTA, that he did not know the combination to a certain silver briefcase and he had purchased a certain laptop computer contained in the briefcase for $250 (980401)

     c.  stealing a laptop computer system, military property of a value of about $2,799, the property of the United States (980307)

2.  On 16 April 1998, 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 submitted a statement on his behalf.  The unit and intermediate commanders recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  The senior commander recommended disapproval of the Chapter 10 request; however, if approved he recommended an under other than honorable conditions discharge.  

3.  On 24 April 1998, 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’s record does not contain any evidence of unauthorized absences or time lost.

5.  The applicant was discharged from the Army on 13 May 1998, 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.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains 10 NCO Evaluation Reports covering the periods of June 1988 through June 1997.  The applicant was rated “Fully Capable” on eight NCOERs (June 1988 through October 1999 and August 1991 through June 1997) and he received “Among the Best” ratings on two (November 1989 through July 1991).

2.  The record does not contain any counseling statements or actions under the Uniformed Code of Military Justice (UCMJ).

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application; DD Form 214; Letter of Appreciation; Certificate, Recruiter of Excellence Award; Diploma, Recruiting and Retention School; Certificate of Commendation; Commanding General’s Gold Badge Award; seven Memoranda, Announcement of Recruiter Incentive Award; eight AAM Citations; Certificate, Associate’s Degree; six Memoranda of Commendation; Command Sergeant Major Certificate; Memorandum, 30,000 Miles Safety Certificate; eleven Certificates of Achievement; Certificate, Academic Achievement; two Certificates of Appreciation; Letter of Appreciation; and a Letter of Commendation.

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

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, showed acts of significant achievement and valor; however it did not support the issuance of a general, under honorable conditions or an honorable discharge by the separation authority and it does not support an upgrade of a general, under honorable conditions or an honorable discharge at this late date.  

4.  The applicant contends this was single incident during sixteen and a half years of service with no other UCMJ actions.  However, the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicant’s incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline.  

5.  The applicant further contends he believes there was command influence to push for a GCM, rather than some other type of punishment.  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.  

6.  The applicant also contends since his discharge, he held jobs involving access to high value items of all types, access to homes, businesses, warehouses, and other areas where such items are held or stored without incident.  This contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued.  

7.  The applicant additionally contends this isolated incident was very bad judgment, and given the chance to correct it, he never would have done such a stupid thing.  This rationale the applicant provided as the basis for what he believes was bad judgment is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.

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:  17 May 2013      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: 			None

Witnesses/Observers: 	NA  

Board Vote:
Character Change:  2	No Change:  3
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)		AR20130000583



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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