IN THE CASE OF:  	

      BOARD DATE:  	17 April 2013

      CASE NUMBER:  	AR20130000974
___________________________________________________________________________

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 partial 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.  



      
      
      
      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 honorable.  

2.  The applicant states, in effect, that he wants to better himself and continue his education.  He served 3 overseas tours and two of them in a combat assignment.  He is not eligible for any medical assistance from the VA because of the characterization of his discharge.  He filed for a Chapter 10 discharge after being misguided by the legal team at Fort Bliss.  He had decided to fight a field grade Article 15 because he thought it was the right thing to do.  He was assigned as a senior medic, was a promotable SPC/E-4 and always performed his duties to the best of his abilities.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			7 January 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				25 October 2011
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:				Rear Det, 4th Bn, 6th IN Rgt, Fort Bliss, TX	
f. Current Enlistment Date/Term:		30 January 2007, 6 years
g. Current Enlistment Service:		4 years, 8 months, 26 days
h. Total Service:				4 years, 8 months, 26 days
i. Time Lost:					None
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		68W10, Health Care Specialist
m. GT Score:					106
n. Education:					High School Graduate
o. Overseas Service:				Korea, SWA
p. Combat Service:				Iraq (090502-100501)
q. Decorations/Awards:			ARCOM, AGCM, NDSM, ICM-CS, GWOTSM 								KDSM, ASR, OSR-2
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			Yes
u. Prior Board Review:				No


SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 30 January 2010, for a period of 6 years.  He was 18 years old and was a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 68H10, Health Care Specialist.  He served at Fort Lee, Fort Sam Houston, Korea, and when his discharge proceedings were initiated he was serving in Iraq.  His record documents an ARCOM, AGCM and ICM with a Campaign Star.  The applicant was discharged at Fort Bliss, TX.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 3 September 2011, court-martial charges were preferred against the applicant for the following offenses:

      a. dereliction of duty (110602), by willfully failing to take vital signs in conjunction with a medical examination
      b. with the intent to deceive provided a false statement (110602)
      c. two specifications of failure to report to his appointed place of duty at the time prescribed (110616)
      d. disobeyed a lawful order from a commissioned officer (110616)
      e. disrespectful in language to a non-commissioned officer (110616)
      
2.  On 10 September 2011, 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.  

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. 

4.  On 10 September 2011, the applicant and his trial defense counsel provided statements on his behalf requesting a general, under honorable conditions discharge.

5.  On 17 September 2011, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued an under other than honorable conditions Discharge Certificate.  

6.  On 25 October 2011, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 4 years, 8 months and 26 days of creditable active military service and accrued no lost time.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There is one negative counseling pertaining to the initiation of the discharge proceedings under the authority of AR 635-200, Chapter 10, in lieu of a court-martial.  

EVIDENCE SUBMITTED BY THE APPLICANT: 

DD Form 149, and a previously submitted DD Form 293, which was administratively closed, because the DD Form 214 was not available at the time.
 
POST-SERVICE ACTIVITY: 

None provided with the application.  

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 a SPD Code of "KFS" will be assigned a RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge 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 a partial upgrade of the applicant's characterization to general, under honorable conditions for the following reasons:  

	a. Length and quality of his service:  The applicant served 4 years, 8 months, and 26 days of a 6-year enlistment, thus the preponderance of his service was honorable.

	b. The record confirms the applicant received several awards, specifically an ARCOM, a AGCM, the ICM-CS, and the KDSM.

	c. The applicant achieved the rank of Specialist and his record does not contain any evidence of negative counseling’s (except for the Chapter 10 discharge) or any other action under the Uniform Code of Military Justice.  

	d. His record contains a Mental Health Evaluation that indicates the applicant had an antisocial personality disorder, was frequently impulsive and had an alcohol dependency by history.  The applicant’ misconduct appears to have taken place on a single day and his discharge was as the result of events over a 2-week period.

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.  The applicant desires to continue his education and obtain VA benefits; however, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

5.  In view of the foregoing, it appears the characterization of the discharge is now inequitable and it is recommended the Board grant partial relief in the form of an upgrade of the characterization of service to general, under honorable.  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: 	Records Review   Date:   17 April 2013        Location: Washington, DC

Did the Applicant Testify?  No 

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: No Change
Change RE Code to: No Change	
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)		AR20130000974

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1