IN THE CASE OF:  	

      BOARD DATE:  	12 June 2013

      CASE NUMBER:  	AR20130002107
___________________________________________________________________________

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 a change to the narrative reason for separation.

2.  The applicant states, in effect, that he was a homeowner and had made an agreement with his uncle that while the applicant completed his enlistment his uncle would move into his home and take over the payments on his behalf.  His uncle passed away unexpectedly and his home was in effect abandoned.  To keep his home from going into foreclosure he made the decision to go home on unauthorized leave from his duty station.  He also feels he should not have been allowed to enlist due to his debt obligation.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			25 January 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				8 August 2008
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:				Headquarters and Services Company, 122d 							Aviation Support Battalion, Fort Bragg, NC	
f. Current Enlistment Date/Term:		23 February 2006, 3 years, 11 months
g. Current Enlistment Service:		7 months, 26 days
h. Total Service:				9 years, 2 months, 17 days
i. Time Lost:					658 days
j. Previous Discharges:			ARNG  970801 - 060222, HD
k. Highest Grade Achieved:			E-2
l. Military Occupational Specialty:		91G10 Food Service Operations
m. GT Score:					NIF
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			NDSM, GWOTSM, 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 23 February 2006, for a period of 3 years and 11 weeks.  He was 27 years old at the time of entry and a high school graduate.  He completed 9 years, 2 months, and 24 days of military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 653 days of time lost for being AWOL from 6 July 2006 until 23 August 2006 and again from 26 August 2006 until he surrendered to military authorities on 27 April 2008.

2.  On 8 May 2008, 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 offenses outlined in the preceding paragraph.  On 9 Many 2009, 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.  The applicant confirmed he had no desire to perform further military service and did not submit a statement in his own behalf.  

4.  On 10 July 2008, 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.  The separation authority’s memorandum shows the separation proceedings were approved on 10 July 2009; however, the date appears to be in error.  The memorandum should reflect the date as 10 July 2008, which would be in sequential date order with the separation packet.  

6.  On 8 August 2008, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 7 months and 26 days of creditable active military service and accrued 658 days of time lost due to being AWOL.  
The record also shows 92 days of excess leave (060805-080509).               

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

A Charge Sheet, dated 8 May 2008, which shows two counts of AWOL.



EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a copy of a HUD Settlement Statement, obituary clipping, a detailed loan summary for a mortgage, Certificate of Completion for Basic Correctional Officer Training, employee performance evaluation, orders 219-0682, Letter of Debarment, preseparation counseling checklist, Service Members’ Group Life Insurance Election and Certificate, and a DD Form 214.

POST-SERVICE ACTIVITY: 

None provided by the applicant

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.  

2.  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.  

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 a 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.  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 a pending foreclosure on his home, after his uncle’s death 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 the narrative reason for the discharge should be changed because because he should never have been allowed to enlist.  However, the applicant was separated under the provisions of Chapter 10, AR 635-200 with an under other than honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," and the separation code is "KFS."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR       635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates     that no deviation is authorized.  There is no provision for any other reason to be entered   under this regulation.  

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: 12 June 2013           Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None


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:		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)		AR20130002107



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1