IN THE CASE OF:  	Mr. 

      BOARD DATE:  	17 May 2013

      CASE NUMBER:  	AR20130001437
___________________________________________________________________________

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 or honorable.

2.  The applicant states, in effect, he had numerous psychiatric problems, was on medication and volunteered to deploy to Iraq the second time; and he should have been medically discharged after his first tour in Iraq.  His mental problems overwhelmed him and he was not thinking correctly.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		14 January 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			13 September 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:			HHC, 2-1st Brigade Special Troops 								Battalion, APO AE 09344
f. Current Enlistment Date/Term:	25 September 2007, 3 years, 26 weeks/11 months 						extension (100726)
g. Current Enlistment Service:	3 years, 11 months, 19 days
h. Total Service:			3 years, 11 months, 19 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	91B10, Wheeled Vehicle Mechanic
m. GT Score:				95
n. Education:				GED
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq-(081007-090303), (101109-110823)
q. Decorations/Awards:		AGCM, NDSM, ICM-W/CS, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		No
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 25 September 2007, for a period of 3 years,     25 weeks and he extended for 11 months.  He was 20 years old at the time of entry with a GED certificate.  He was trained in and was awarded military occupational specialty (MOS) 91B10, Wheeled Vehicle Mechanic.  He was serving in Iraq, when his discharge was initiated.  His record also shows that he served a combat tour and earned an AGCM.


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on     12 August 2011, the applicant was charged with the following offenses:

     a.  lifting up a weapon, an axe, against CPT CF, his superior commissioned officer (110808)

     b.  being disrespectful in language toward MSG MH, a noncommissioned officer x 2 (110808, 110808)

     c.  wrongfully communicating to CPT CF, a threat to injure member of his chain of command by shooting up the building (110808)

2.  On 16 August 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‘s defense counsel submitted a statement on his behalf.  The applicant’s chain of command’s documentation recommended approval of the Chapter 10 request is not contained in the available record and government regularity is presumed in the discharge process.  

3.  On 25 August 2011, the separation authority approved and directed the discharge with a characterization of service of under other than honorable conditions.  

4.  The applicant was discharged from the Army on 13 September 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 an RE code of 4.

5.  The applicant's record shows he was placed in pre-trial confinement on 9 August 2011. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A Company Grade Article 15, dated 1 August 2011, for attempting to strike CPT PV (110606); and wrongfully communicating to CPT PV, a threat to kill him (110606); the punishment consisted of reduction to E-1, forfeiture of $365 pay (suspended), and extra duty for 14 days.

2.  The record does not contain any counseling statements.

3.  A pre-trial confinement order, dated 9 August 2011.


EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 149; Memorandum, Trial Defense Counsel; Chronological Record of Medical Care, three pages; VA Form 21-256 (Veteran’s Application for Compensation or Pension); 15 pages; and a DD Form 214.

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 no acts of significant achievement and valor; and did not support the issuance of a general, under honorable conditions or an honorable discharge by the separation authority.  Furthermore it does not support an upgrade of a general, under honorable conditions or an honorable discharge at this late date.  

4.  The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade.  However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge.

5.  The applicant contends he had numerous psychiatric problems, was on medication and volunteered to deploy to Iraq the second time; and he should have been medically discharged after his first tour in Iraq.  The evidence of record shows the applicant was being treated by component medical authority for his mental health issues.  Furthermore, the applicant was deployed to Iraq a second time and subsequently received an Article 15 for violations of the Uniformed Code of Military Justice (UCMJ) and was recommended to be expeditiously removed from theater based on the nature of the offenses.

6.  Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  The applicant having consulted with legal counsel 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 offenses which led to his separation from the Army.

7.  The applicant further contends his mental problems overwhelmed him and he was not thinking correctly.  The record shows that on 13 July 2011, the applicant underwent a mental status evaluation which indicates he was mentally responsible, with thought content as clear, was able to recognize right from wrong and able to understand and participate in administrative proceedings.  

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: 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:	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)		AR20130001437



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1