IN THE CASE OF:  	Mr.

      BOARD DATE:  	12 June 2013

      CASE NUMBER:  	AR20130001840
___________________________________________________________________________

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.  However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 27, contains the erroneous re-entry code of 4.  The Board directed an administrative correction to block 27 to read RE-3, as required by Army Regulations.




      
      
      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, it has been almost 15 years since he was discharged.  He had 12 years of faithful service.   He is an 80% disabled veteran.  He did not know his rank would be taken and other things, these things were never explained to him.  He joined the Army at 18 years old, two weeks after graduating from high school.  He cannot get a state or federal job with the discharge he received.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		25 January 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			3 April 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:			HHC, 4th Engineer Battalion, Fort Carson, CO
f. Current Enlistment Date/Term:	30 April 1997, 3 years
g. Current Enlistment Service:	8 months, 26 days
h. Total Service:			11 years, 8 months, 12 days
i. Time Lost:				39 days
j. Previous Discharges:		USAR-(850723-860608)/NA									RA-(860609--891129)/HD										RA-(891130--920405)/HD										RA-(920406--941214)/HD										RA-(941215-970429)/HD
k. Highest Grade Achieved:		E-6
l. Military Occupational Specialty:	31U10, Signal Support System Specialist/
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			Germany/Southwest Asia
p. Combat Service:			Saudi Arabia-(900930-910418)
q. Decorations/Awards:		ARCOM, AAM, AGCM-2, NDSM, AFEM, SWASM-						W/3 BSS, NPDR-2, ASR, OSR-3, KLM-SA, KLM-KU 						MUC
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 Regular Army on 9 June 1986, for 4 years.  He was 18 years old at the time of entry and a HS Graduate.  His last reenlistment on 30 April 1997 was for a period of 3 years and he was 29 years old at the time.  He was initially trained in and awarded military occupational specialty (MOS) 31U10, Signal Support System Specialist and he achieved the rank of SSG/E-6.  He was serving at Fort Carson, CO, 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-3.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record does not contain a DD Form 458 (Charge Sheet), and government regularity prevails in the discharge process.

2.  On 19 February 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 did not submit a statement on his behalf.  The unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  The intermediate and senior commanders recommended disapproval of the Chapter 10 request with an under other than honorable conditions discharge.  

3.  On 24 February 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 of service indicates 39 days of time lost for being AWOL from          31 May 1997 through 3 June 1997, for 3 days and 27 February 1998 through 2 April 1998, for 36 days.  Mode of return is unknown for each period of AWOL.

5.  The applicant was discharged from the Army on 3 April 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 a RE code of 4.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains nine NCO Evaluation Reports covering the periods of January 1990 through July 1997.  The applicant was rated “Fully Capable” on eight NCOERs (January 1990 through March 1995 and August 1995 through July 1997) and he received an “Among the Best” rating on one report (April 1995 through July 1995).

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 a DD Form 293; applicant’s handwritten statement, four pages;  Department of Veterans Affairs (VA), Rating Decision, two pages; DD Form 214; DD Form 215; and Discharge Orders 093-0008.

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.

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 it has been almost 15 years since he was discharged.  However, the US Army does not have, nor has it ever had, a policy to upgrade a discharge based on time elapsed since the discharge.  Each case is decided on its own merits based on all factors contained in the official record or as submitted by the applicant.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge or both were improper or inequitable.

5.  The applicant further contends he had 12 years of faithful service.  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 as shown by the repeated incidents of misconduct and the multiple negative counseling statements.

6.  The applicant also contends he is an 80% disabled veteran.  The Veterans Administration granted him service connected disability for several medical conditions.  However, a careful review of the entire record reveals that these medical conditions do not overcome the reason for discharge and characterization of service granted.  

7.  The applicant additionally contends he did not know his rank and other things would be taken; this was not explained to him.  The evidence of record shows the applicant consulted with legal counsel and voluntarily requested, in writing, discharge under the provisions of Chapter 10, and 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.  Moreover, AR 600-8-19, paragraph 6-15, states when the separation authority determines that a Soldier is to be discharged from the service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade.  Further Board action is not required for this reduction.

8.  Furthermore, the applicant contends he joined the Army at 18 years old, two weeks after graduating from high school; and he cannot get a state or federal job with the discharge he received.  The record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

9.  Further, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

10.  The records show the proper discharge and separation authority procedures were followed in this case.  

11.  However, the service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4.  The discharge packet confirms the separation authority approved the discharge by reason of in lieu of trial by court-martial.  AR 635-5-1, (Separation Program Designator Codes) and Cross Reference Table, at the time of discharge shows that a Soldier processed for in lieu of trial by court-martial will be assigned an SPD Code of KFS and an RE Code of 3.  

12.  In view of the foregoing and notwithstanding the propriety of the discharge, recommend the Board change block 27, reentry code to 3, as approved by the separation authority.

13.  Except for the foregoing modification, the discharge was both proper and equitable, recommend the Board deny relief.

























SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review         Date:  12 June 2013        Location:   Washington, DC

Did the Applicant Testify:  NA

Counsel:  None

Witnesses/Observers:  NA

Board Vote:
Character Change:  1	No Change:  4
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:	No Change
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		3
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)		AR20130001840



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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