IN THE CASE OF:  	Mr. 

      BOARD DATE:  	31 May 2013

      CASE NUMBER:  	AR20130002133
___________________________________________________________________________

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 served honorably over four years without any negative incidents.  His absent without leave status (AWOL) was a result of mental issues.  VA benefits would be a great help with his mental health issues or further his education.  He has a great opportunity to work on the TransCanada pipeline.   

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		25 January 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			19 December 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:			D Troop, 4-6th Air Cavalry Regiment, Joint Base 						Lewis-McChord, WA
f. Current Enlistment Date/Term:	22 August 2007, 6 years
g. Current Enlistment Service:	4 years, 3 months, 3 days
h. Total Service:			4 years, 3 months, 3 days
i. Time Lost:				25 days 
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	15S10, OH-58D, Helicopter Repairer
m. GT Score:				103
n. Education:				GED Certificate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq-(specific dates NIF)
q. Decorations/Awards:		AAM-2, AGCM, NDSM, ICM-W/CS, ASR, Basic AVN      					Badge
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 22 August 2007, for a period of 6 years.  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) 15S10, OH-58D, Helicopter Repairer.  He was serving at Joint Base Lewis-McChord, WA, when his discharge was initiated.  His record also shows that he served a combat tour and earned several awards which included two awards of the AAM and an AGCM.


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on     23 November 2011, the applicant was charged with the following offenses:

     a.  being AWOL during the period (111027-111120)

     b.  without authority, failing to go at the time prescribed to his appointed place of duty x 2 (110923, 111011)

     c.  with intent to deceive, making a false official statement to SGT DK (111009)

     d.  wrongfully using marijuana (110925-111025)

2.  On 28 November 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 submitted a statement on his behalf.  The applicant’s chain of command recommended approval of the Chapter 10 request.  

3.  On 8 December 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 19 December 2011, 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 an RE code of 4.

5.  The applicant’s available record does not show any recorded actions under the UCMJ. However, he was reduced to PV2/E-2 and the action that caused his reduction is not contained in the service record.

6.  The applicant's record shows he was placed in pre-trial confinement on 25 November 2011. 

7.  The applicant’s record of service indicates 25 days of time lost for being AWOL from           7 August 2011 through 8 August 2011 for 2 days and 27 October 2011 through 19 November 2011 for 23 days.  Applicant’s mode of return is not in the file.







EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The record does not contain any counseling statements.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293; a DD Form 214; and Amended Discharge Orders 347-0015.

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 issues 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, 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 to a general, under honorable conditions or an honorable discharge at this late date.  

4.  The applicant contends he served honorably over four years without any negative incidents.  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 overcome the reason for discharge and the characterization of service granted.

5.  The applicant further contends his AWOL status was a result of mental issues.  The evidence of record (Mental Status Evaluation) shows the applicant was diagnosed with alcohol dependence; opiate dependence; alcohol intoxication; adjustment disorder, unspecified (maladaptive reactions) and antisocial personality disorder traits.  The applicant was scheduled for an ASAP evaluation and kept that appointment.  However, he did not follow up on subsequent appointments regarding his treatment and was noncompliant with prescribed medications.  Although the applicant stated he wanted treatment, when treatment was offered, he went AWOL, binged on drugs and drove a motor vehicle while angry and intoxicated, destroying property and endangering lives.

6.  The applicant also contends VA benefits would be a great help with his mental health issues and further his education.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

7.  The applicant additionally contends he has a great opportunity to work on the TransCanada pipeline.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

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:   31 May 2013      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA 

Board Vote:
Character Change:  	No Change:  
Reason Change:		No Change:  
(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)		AR20130002133



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1