IN THE CASE OF:  	Mr. 

      BOARD DATE:  	29 May 2013

      CASE NUMBER:  	AR20130001526
___________________________________________________________________________

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 under other than honorable conditions discharge to honorable and his RE code and SPD code changed.   

2.  The applicant states, in effect, he believes that his military records should be upgraded because he is a former United States Marine who was discharged honorably with a reentry code of Al.  He believes that his Army obligation was unjust because his recruiter stated to him that since he had previously served in the Marine Corps he would only have to attend AIT not the entire basic training.  However, when he arrived at basic he was started at the beginning of week one of basic.  He tried talking with his command about starting in the wrong week of training but they would not listen to him.  He received a good conduct ribbon and medal from the Marines.  He has what it takes to be a Solider.  He dedicated himself to the Army; however, he feels that where he was picked up in basic was unjust and incorrect. 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			10 January 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				11 September 2006
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:				C Company, 1st Battalion, 19th Infantry 								Regiment, Fort Benning, GA		
f. Current Enlistment Date/Term:		21 November 2005, 3 years, 12 weeks
g. Current Enlistment Service:		0 years, 7 months, 2 days
h. Total Service:				4 years, 7 months, 2 days
i. Time Lost:					AWOL for 77 days
j. Previous Discharges:			USMC, (001106 - 041105), HD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		11B10, Infantryman
m. GT Score:					NIF
n. Education:					HS Graduate
o. Overseas Service:				NIF
p. Combat Service:				NIF
q. Decorations/Awards:			MCGCM, NDSM, SSDR-2, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			No
u. Prior Board Review:				No


SUMMARY OF SERVICE:		
	
The applicant served honorably in the US Marine Corps for a period of 4 years.  He enlisted in the US Army on 21 November 2005, for a period of 3 years, and 12 weeks.  He was 25 years old at the time of entry and a high school graduate.  He completed a total of 4 years, 7 months, and 2 days of active duty service.  His DD Form 214 incorrectly reflects an entry date of         21 November 2001 in block 12a.  The enlistment contract correctly reflects an entry date of     21 November 2005.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 77 days of time lost for being AWOL from 6 February 2006 until his surrender on 24 April 2006.

2.  On 4 May 2006, a court-martial charge was preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) based on the AWOL offense outlined in the preceding paragraph.  

3.  On 5 May 2006, 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.

4.  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.  The applicant confirmed he had no desire to perform further military service and did not submit a statement in his own behalf.  

5.  On 26 August 2006, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued a UOTHC Discharge Certificate.  

6.  On 11 September 2006, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 7 months and       2 days of creditable active military service and accrued 79 days of time lost due to being AWOL.  In also includes a period of 130 days of excess leave (060505-060911).


EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

A DA Form 458, Charge Sheet, dated 4 May 2006, which shows the applicant went AWOL from 6 February 2006 until 24 April 2006.

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided an on-line application, Certificate of Good Conduct, Promotion Certificate, and a DD Form 24 from the Marine Corps and a DD Form 214 from the Army.

POST-SERVICE ACTIVITY: 

None provided by the applicant.

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 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 the characterization of his discharge and a change to the SPD and reentry codes 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 no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority and it does not support an upgrade to an honorable or a general discharge at this late date.  

4.  The applicant contends he was misled by his recruiter.  However, 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.  

5.  The applicant contends that he had prior good service as a Marine. The applicant’s service accomplishments and the quality of his service prior to the incident that caused the initiation of discharge proceedings were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge.  

6.  Therefore, the reason and 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: 29 May 2013            Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

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)		AR20130001526



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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