IN THE CASE OF:  	Mr. 

      BOARD DATE:  	17 July 2013

      CASE NUMBER:  	AR20130005028
___________________________________________________________________________

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 his under other than honorable conditions discharge be upgraded to general, under honorable conditions or honorable.

2.  The applicant states, in effect, that at the time of discharge he was having serious family problems along with suffering from post traumatic stress disorder (PTSD) and other conditions.  He contends he received a DUI as the results of trying to save his marriage and family.  He also contends he was an outstanding Soldier until he returned from Afghanistan, he never had an Article 15, and he achieved the rank of E-4 within a year.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			11 March 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				15 November 2012
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, Chapter 10, 								KFS, RE-4
e. Unit of assignment:				D Co, FSC, 1st Bn, 10th Cav, Fort Carson, 							CO
f. Current Enlistment Date/Term:		30 October 2009, 3 years and 27 weeks
g. Current Enlistment Service:		2 years, 10 months, 14 days
h. Total Service:				2 years, 10 months, 14 days
i. Time Lost:					61days (base on the periods of time lost 								indicated on the DD Form 214 under review)
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		92G10, Food Service Operation
m. GT Score:					NIF
n. Education:					HS Graduate
o. Overseas Service:				Southwest Asia
p. Combat Service:				Afghanistan (110606-120519)
q. Decorations/Awards:			ARCOM, NDSM, ACM-w/2CS, GWOTSM, 								ASR, OSR, NATOMDL
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No




SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 30 October 2009, for a period of 3 years and    27 weeks.  He was 20 years old at the time of entry and a high school graduate.  He served a combat tour in Afghanistan and was awarded an ARCOM.  He completed 2 years, 10 months, and 14 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s available record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  

2.  The DD Form 214 indicates that on 15 November 2012, 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 reentry eligibility (RE) code of 4.

3.  The DD Form 214 under review indicates 61 days of time lost; (120822-120829, 120831-121017, and 121018-121024).  However, only the period (121018-121024) is supported by the documents (i.e. DA Form 4187's) found in the available record which shows the applicant was AWOL and confined.  The DA Form 4187's, dated (120830, 120904, 120920, and 121026), that changed the applicants duty status are not inclusive. 

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, Department of Veterans Affairs Form's VA Form 21-4138 (2) and VA Form 21-526 (pages 5-10) and a copy of the DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

None 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.

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 specific facts and circumstances concerning the events which led to his discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was 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 contends he was an outstanding Soldier until his return from Afghanistan that he never had an Article 15.  He also contends that he achieved the rank of E-4 within a year.  There is insufficient evidence available in the official record to make a determination upon the applicant's quality of service.  

4.  The applicant also contends at the time of discharge he was having serious family problems and suffered from PTSD.  There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his discharge was the result of family problems or medical issues.  The applicant’s statements alone does not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 

5.  If the applicant desires a personal appearance, it is his responsibility to meet the burden of proof since the evidence is not available in the official record.  The applicant will need to provide the appropriate documents or other evidence (i.e., discharge packet) sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.

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: Record Review	  Date: 17 July 2013   Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA 

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:	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)		AR20130005028



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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