IN THE CASE OF:  	Mr. 

      BOARD DATE:  	19 June 2013

      CASE NUMBER:  	AR20130002074
___________________________________________________________________________

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 discharge to honorable.

2.  The applicant states, in effect, that while he was stationed at Fort Benning his life took a sudden turn for the worse.  He found out that his wife was being unfaithful, his cousin had committed suicide, and his daughter was being molested.  He was given only 3 days by his chain of command to handle his issues.  Since being discharged he has continued his education by earning two associate’s degrees, continuing to work on his bachelor’s degree and has no problem with law enforcement.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		25 January 2013		
b. Discharge Received:		Under, Other Than Honorable Conditions
c. Date of Discharge:			14 December 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:			A Company, 2nd Battalion, 19th Infantry Regiment, 						Fort Benning, GA			
f. Current Enlistment Date/Term:	12 April 2006, 4 years, 16 weeks
g. Current Enlistment Service:	0 years, 5 months, 22 days
h. Total Service:			0 years, 5 months, 22days
i. Time Lost:				72 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	None
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		None
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 12 April 2006 for a period of 4 years and 16 weeks.  He was 19 years old at the time of entry, a high school graduate, and completed 5 months, and 22 days of active duty service.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 72 days of time lost for being AWOL from 26 June 2006 until he surrendered to military authorities on 6 September 2006.

2.  On 14 September 2006, a court-martial charge was preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL.  On 
15 September 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, under the provisions of AR 635-200, Chapter 10.

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

4.  On 2 November 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.  

5.  On 14 December 2006, the applicant was discharged accordingly.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 5 months and 22 days of creditable active military service and accrued 72 days of time lost due to being AWOL.  

6.  The record shows the applicant was placed on excess leave for 88 days from 18 September 2006 until 14 December 2006.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:
      
A DD Form 458, Charge Sheet, dated 14 September 2006 that shows the applicant was charged with AWOL.

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided a DD Form 293, a letter of reference from employer, Certificate of Recognition, Certificate of Training, Diploma for Associate of Applied Science in Power     Plant Technology, Diploma for associate of Applied Science in Airframe Technology,     Trainee Evaluation, orders 352-0681, preseparation counseling checklist, and 2 copies           of a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant states he has completed 2 associate’s degrees, and is currently working towards his bachelor’s degree.

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.  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.

4.  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 and a change to the reentry code 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 for being AWOL 72 days.  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 that he was having family issues that affected his behavior and ultimately caused him to be discharged.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  

5.  The applicant contends that since leaving the Army he has earned two associate’s degrees, is working towards his bachelor’s degree, currently in the process of divorcing his wife, and has not had problems with the law.  The applicant’s post-service accomplishments have been noted as outlined on the application and in the documents with the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  

6.  The applicant would like the opportunity to rejoin the Service.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on AR 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE Code of 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 

7.  The applicant contends that he was not given the opportunity to consult with legal counsel.  However, the record shows that on 15 September 2006, the applicant, after consulting with legal counsel, requested a discharge in lieu of trial by court-martial; thus, his contention is without merit. 

8.  The applicant also contends he requested leave and was denied by his chain of command.  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.  

9.  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:  19 June 2013        Location: Washington, DC

Did the Applicant Testify?  No 

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)		AR20130002074

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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