IN THE CASE OF:  	Mr. 

      BOARD DATE:  	12 August 2013

      CASE NUMBER:  	AR20130003348
___________________________________________________________________________

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 his under other than honorable conditions discharge be upgraded to general, under honorable conditions or honorable and a narrative reason change to Secretarial Authority.

2.  The applicant states, in effect, that he was providing attachment to be viewed; however, no attachments were provided by the applicant.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			11 February 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				17 September 2004
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, Chapter 10 								KFS, RE-4
e. Unit of assignment:				F Co, 82d Chemical Bn, Fort Leonard Wood, 							MO
f. Current Enlistment Date/Term:		28 October 2003, NIF
g. Current Enlistment Service:		2 months, 26 days
h. Total Service:				2 months, 26 days
i. Time Lost:					233 days 
j. Previous Discharges:			USAR-030825-031027/NA											    (Concurrent Service)
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		None
m. GT Score:					NIF
n. Education:					College Grad
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			None
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				Yes, 4 January 2012, denied
SUMMARY OF SERVICE:		

The applicant enlisted in the United States Army Reserve on 25 August 2003, and was ordered to initial active duty for training (IADT).  He was 22 years old at the time of entry and a college graduate.  He was attending training at Fort Leonard Wood, MO when he went AWOL.  His record documents no acts of valor or significant achievements.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s record is void of the complete facts and circumstances concerning the events which led to the discharge from the Army.  The evidence of record does not contain the charge sheet that was used to separate the applicant after returning from AWOL status.  However, the record contains a DD Form 458, charge sheet, that was used to drop the applicant from the rolls of the Army.  This document indicates that the applicant was being charged with desertion, in that on 3 January 2004, without authority and with the intent to remain away permanently, absented himself from his unit and did remain so absent in desertion.  The applicant returned from AWOL status after being apprehended by civil authorities on 23 August 2004.  

2.  The record also contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant’s signature.  

3.  The DD Form 214 indicates that on 17 September 2004, the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  Further, the DD Form 214 shows a Separation Code of KFS (i.e., in lieu of trial by court-martial) with a reentry eligibility (RE) code of 4.

4.  The applicant’s record of service indicates 233 days of time lost for being AWOL from         3 January 2004 until his apprehension by civil authorities on 23 August 2004 and 9 days of excess leave from 9 September 2004 to 17 September 2004.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There are no negative counseling’s or actions under the Uniform Code of Military Justice in the available record.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 and a copy of the DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

None were provided with the application.








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 the characterization of his discharge was carefully considered.  However, after examining the applicant’s military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.

2.  The applicant’s available record is void of the complete facts and circumstances concerning the events which led to his discharge from the Army.  However, the record contains the initial charge sheet that was used to drop him from the rolls of the Army which indicates he was being charge with Desertion.  The record also contains a properly constituted DD Form 214, which was not authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge.  Barring evidence to the contrary, it appears all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant indicates a desire to have his narrative reason charged.  However, the applicant was separated under the provisions of Chapter 10, AR 635-200.  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 entered 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.  

4.  Furthermore, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service.  Moreover, there is a presumption of regularity in the conduct of governmental affairs.  This presumption is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted.  

5.  It is the responsibility of the applicant to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record.

6.  Therefore, based on the available evidence and the presumption of government regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Personal Appearance 	  Date: 12 August 2013   Location: Washington, DC

Did the Applicant Testify?  ?Yes???? 

Counsel: Yes [ redacted ]

Witnesses/Observers: None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a. Affidavit of Bharat Kumar D Patel – 2 pages
	b. Affidavit of Lilavati B Patel – 2 pages
	c. Prescription for Depression for Lilavati – 1 page
	d. Medical Certificate for Lilavati Patel – 1 page
	e. Copy of US Passport ID page – 1 page

2.  The applicant presented no additional contentions.

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:  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)		AR20130003348



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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