IN THE CASE OF:  	

      BOARD DATE:  	29 July 2013

      CASE NUMBER:  	AR20130003338
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony, 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 to upgrade his characterization of service from under other than honorable conditions to fully honorable, and to change the narrative reason for his discharge.

2.  The applicant provided an extensive self-authored statement, refuting in detail the court-martial charges and the circumstances surrounding the domestic incident with his former spouse.  In pertinent part, he states, in effect, that he believes the evidence he included with his application is sufficient to prove his honorable service in the U.S. Army and requests a personal appearance hearing to be allowed the opportunity to be heard and to answer any remaining questions.  He states he was driven to succeed in the military, promoted early to every rank he achieved, was honorably discharged and reenlisted in Iraq, and is a highly decorated specialist with four years, three months, and eight days of completely faithful, honest, and honorable service.  He adds that the decisions he made were that of a human being suffering from an unknown mental illness when he was not allowed to contact his son.  His former spouse was lying to everyone, and they believed her.  He was not able to consistently sleep, had flashbacks of incidents he witnessed in Iraq, and was never able to relax.  Reflecting on the incidents that occurred after 25 March 2008, his PTSD had truly started to negatively affect his life.  His world was flipped upside-down and nothing made sense.  If he could go back in time, he would have the patience to wait for his former spouse’s lies to be exposed, and he never would have trusted SFC S.  He adds that every day of his life is full of regret from the things he could not control while in the U.S. Army.  He believes his battalion, specifically, an NCO (SFC S), is responsible for destroying his family and military career.  SFC S was allowed to have free reign over his life, and that SFC S allowed the incident of 25 March 2008 to remain known to everyone until he was discharged.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	15 February 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	27 January 2010
	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:	HHD, 509th Signal Bn, APO AE 09630, Vicenza 
			Italy
	f.	Current Enlistment Date/Term:	13 October 2006, 6 years
	g.	Current Enlistment Service:	1 year, 9 months, 5 days
	h.	Total Service:	4 years, 3 months, 8 days
	i.	Time Lost:	497 days
	j.	Previous Discharges:	RA (040611-061012) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	25L10, Cable Systems Installer/Maintainer
	m.	GT Score:	126
	n.	Education:	GED
	o.	Overseas Service:	Italy, SWA
	p.	Combat Service:	Iraq (051128-061112)
	q.	Decorations/Awards:	ARCOM-2; AAM-3; AGCM; NDSM; ICM-CS 
			GWOTSM; ASR; OSR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 11 June 2004, for a period of 4 years and reenlisted in Iraq on 13 October 2006, for a period of 6 years.  He was 20 years old at the time of entry and had a high school equivalency (GED).  He served in Italy and Iraq.  He earned two ARCOM and three AAM awards, and completed 4 years, 3 months, and 8 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 497 days of time lost for being AWOL from 29 August 2008 until he surrendered to military authorities on 7 January 2010; disobeying a lawful command on 13 April 2008; and assaulting Ms. F on 25 March 2008.

2.  On 8 January 2010, the aforementioned court-martial charges were preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) based on the AWOL offense; Article 90 of the UCMJ based on disobeying a lawful command offense, and Article 128, UCMJ based on assault, consummated by a battery offense as outlined in the preceding paragraph.  On 9 January 2010, 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 a statement on his behalf was submitted by his counsel.  

4.  On 20 January 2010, 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 27 January 2010, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 4 years, 3 months, and 8 days of creditable active military service and accrued 497 days of time lost due to being AWOL.  

6.  The applicant's record shows he was absent without leave (AWOL) during the period 19 August 2008 through 7 January 2010.  His record indicates he returned to military control on 7 January 2010.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  DD Form 139, Pay Adjustment Authorization, dated 5 January 2010, shows the applicant certifying that he was without funds and authorizing the cost of his travel from Syracuse, New York to Vicenza, Italy travel on 6 January 2010, be charged to his pay account.

2.  Three negative counseling statements, dated between 28 March 2008 and 3 June 2008, for being ordered to not have unsupervised contact with his spouse; making false official statements; falsifying government documents; and disobeying an order.

3.  A Memorandum for Record, dated 8 September 2008, rendered by the applicant’s detachment first sergeant documents the events and circumstances surrounding the applicant’s CONUS leave and his intention of not returning to his unit in Italy.

4.  An MP Report dated 25 March 2008, that indicates the applicant was the subject of an investigation for simple assault, consummated by a battery under Article 128, UCMJ. 

5.  Numerous e-mail correspondences, dating between 7 September 2008 and , exchanged between the applicant’s parents, the detachment first sergeant, spouse, regarding the applicant’s AWOL, monthly support payments, changes in flight schedule and status, grandmother’s health status, notification that he will not be returning to his unit in Italy, and request for assistance with TMP van dispatch for staff duty. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided with his application, a five-page self-authored statement; honorable discharge certificate, dated 12 October 2006; character reference statement, dated 12 February 2013; counseling statement, dated 10 April 2008; DA Form 31, dated 1 June 2007; International Driving Permit, dated 19 July 2007; application for POV and military operator’s license, dated 15 August 2007; e-mail correspondences, dated between 30 May 2008 and 2 September 2008,exchanged between the applicant, his spouse, and detachment first sergeant; the applicant’s battalion commander’s handwritten note, dated 3 October 2008; memoranda of recommendations rendered by the applicant’s chain of command regarding his request for discharge in lieu of trial by court-martial, dated in January 2010; medical record (page 4 of 5), dated 5 February 2013; page 5 of an MP narrative report, dated 2 April 2008; three sworn statements rendered by spouse, SGT G, and the applicant, dated 25 March 2008; family court documents, dated 17 June 2010, 12 December 2012, and 24 January 2013.

POST-SERVICE ACTIVITY: 

The applicant provided none.  

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 his characterization and a change to the narrative reason for his discharge 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 offenses 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.  Although his record documents acts of significant achievement and valor, they were insufficient to support the issuance of an honorable or a general discharge by the separation authority and they do 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.  Moreover, the applicant contends the deceptive behavior of his former spouse and his detachment first sergeant contributed to his discharge, and that the first sergeant and the command were also responsible for destroying his family and military career.  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.  

6.  The applicant contends the Post-Traumatic Stress Disorder (PTSD) was also a contributing factor that negatively affected his life.  However, the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis to support the contention that the discharge was the result of any medical condition, but that the applicant submitted limited information that indicates a diagnosis of PTSD as noted on page 4 of the only medical document he submitted, which shows to consist of five pages.  

7.  The applicant contends that he had good service which included being a highly decorated Soldier at his rank as a specialist.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused him to request a discharge in lieu of trial by court-martial were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct, including an extensive AWOL period and by the multiple negative counseling statements.

8.  The applicant also requested a change in the reason for the discharge.  However, 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.  The regulation further stipulates that no deviation is authorized.  

9.  The records show the proper discharge and separation authority procedures were followed in this case and the character of the applicant’s discharge is commensurate with his overall service record.  

10.  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: 	Personal Appearance      Date:  29 July 2013     Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel: None

Witnesses/Observers:  Yes 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a. VA approval letters (3)
	b. Promotion letter
	c. Statement from SGT W.

In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

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)		AR20130003338



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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