IN THE CASE OF:  	Mr. 

      BOARD DATE:  	9 September 2013

      CASE NUMBER:  	AR20130005054
___________________________________________________________________________

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 notwithstanding the examiner’s Discussion and Recommendation that follows, the Board determined the discharge is now inequitable.  The Board found the applicant’s testimony was creditable and the circumstances surrounding the applicant’s discharge, (i.e., mental condition) mitigated the discrediting entry in his service record.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority.  This action entails a change to the reentry eligibility (RE) code to 3, and a restoration of grade to SPC/E-4.  



      
      
      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 honorable.  

2.  The applicant states, in effect, because of a 1940 law regarding acts committed prior to discharge of someone deemed mentally ill prior to discharge.  One paperwork error after another has had this request a total of 13 years.  According to Army documents, a letter was provided by Dr. A.  According to Army records, no lawyer or legal defense was provided, contrary to previous decision factors.  According to army records, no court-martial was to be applied, but one was done 9 months later in December 2001.  
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			8 March 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				17 January 2002
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:				HHC, 1-16 IN BN, Fort Riley, KS 	
f. Current Enlistment Date/Term:		24 June 1998, 4 years
g. Current Enlistment Service:		3 years, 4 months, 22 days
h. Total Service:				3 years, 4 months, 22 days
i. Time Lost:					62 days 
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		91 W10 Health Care Specialist
m. GT Score:					108
n. Education:					HS Grad 
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			AAM, NATOMDL, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				16 December 2009, denied
SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 24 June 1998 for a period of
4 years.  He was 19 years old and a high school graduate.  He was trained in and awarded the MOS 91W10, Health Care Specialist.  He received an AAM and an ASR.   


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 62 days of time lost for being AWOL 10 December 2001 until his surrender on 10 March 2001.  

2. On 15 March 2001, 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 offense outlined in the preceding paragraph.  On 15 March 2001, 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 submit a statement on his own behalf.  

4.  On 10 December 2001, the unit commander recommended separation with a under other than honorable conditions. 

5.  On 17 December 2001, 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.  

6.  On 17 January 2002, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 3 years, 4 months and 
22 days of creditable active military service and accrued 62 days of time lost due to being AWOL and subsequently, surrendered to the military authorities.  The applicant also had 308 days of excess leave (16 March 2001 to 17 January 2002).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

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




EVIDENCE SUBMITTED BY THE APPLICANT: 

A DD Form 293 application, dated 8 January 2013, a Mental Evaluation, dated 5 March 2001, copies of several awards, and a copy of his discharge packet.

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 his characterization 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 UOTHC 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 at the time of discharge and it does not support an upgrade to an honorable or a general discharge at this late date.  

4.  The applicant contends that he had a mental illness 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.  The applicant contends no legal defense was provided and a court martial was applied 
9 months later.  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.   The character of the applicant’s discharge is commensurate with his overall service record.  

6.  Therefore, the 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:  9 September 2013  Location:  Washington, DC

Did the Applicant Testify?  Yes 

Counsel:  Ms. Dorian T Summerlin, 4220 Sawyer Road, Sarsota Florida 34223

Witnesses/Observers: Yes, mother. 













DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE

1.  The applicant submitted the following additional documents:

	a.  Medical documents, 10 pages.

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:  3	No Change:  2
Reason Change:	3	No Change:  2
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	Honorable
Change Reason to:			Secretarial Authority
Change Authority for Separation:	AR 635-200, Chapter 5, Paragraph 5-3
Change RE Code to:		3
Grade Restoration to:		SPC/E-4
Other:					Separation Program Designator (SPD) Code JFF


















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)		AR20130005054



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1