IN THE CASE OF:  	Mr. 

      BOARD DATE:  	2 October 2013

      CASE NUMBER:  	AR20130005141
___________________________________________________________________________

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:

Issues:  The applicant requests an upgrade of his discharge from under other than honorable conditions to general, under honorable conditions or honorable and a change to the narrative reason for separation.  The applicant states, in effect, he provides the following issues for the Board's consideration:

Issue 1.  His statement was not written by him; the detective wrote his statement and the contents were not to his knowledge, nor was he allowed to review the statement prior to signing it.

Issue 2.  His absent without leave (AWOL) status was put into effect after he was already home.

Issue 3.  The statements of the other alleged persons were found to be repetitively false by the detectives.

Issue 4.  Statements of his involvement in any form were also found to be completely false.

Issue 5.  Statements made by witness, continuously confirmed he was merely in the area. None of them identified him as breaking into any rooms. Statements of witness however, confirmed seeing the other persons involved and seeing to break in, or being offered stolen property.

Issue 6.  He had an honorable discharge due to Personality Disorder granted to him by his commanding officers to include the brigade commander.

Issue 7.  He believes his involvement was in prejudice and his commanding officer showed no intent to defend him.

Issue 8.  It was to be believed that reading the report shows the other parties merely sought his involvement to split impending sentencing.  Due to his recent mental state he felt like an easy fallback.

Issue 9.  It was stated he received rehabilitative therapy to seek possible retention; this was untrue as he was only seen by the doctor for diagnosis to proceed with the discharge.










DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		11 March 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			21 November 2007
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:			Maintenance Troop, Regimental Support Squadron, 						3rd Armored Cavalry Regiment, Fort Hood, TX
f. Current Enlistment Date/Term:	8 February 2006, 4 years and 24 weeks
g. Current Enlistment Service:	1 year, 5 months, 15 days
h. Total Service:			1 year, 5 months, 15 days
i. Time Lost:				118 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-1
l. Military Occupational Specialty:	63B10, Wheeled Vehicle Mechanic
m. GT Score:				108
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army 8 February 2006, for a period of 4 years and 24 weeks.  He was 19 years old at the time of entry and a HS Graduate.  The record does not contain any evidence of acts of valor or meritorious achievements.  He was serving at Fort Hood, TX when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 20 March 2007, the applicant was diagnosed by competent medical authority with a personality disorder, which was a chronic maladaptive pattern of behavior, emotions interpersonal functioning, impulse control, and thinking that is resistant to change and the applicant met the criteria for administrative separation under the provision of Chapter 5-13.

2.  On 23 May 2007, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 5, paragraph 5-13, AR 635-200, , by reason of personality disorder, which interfered with his assignment and with his performance of duty.  

3.  The unit commander recommended an honorable discharge and advised the applicant of his rights.  

4.  On 24 May 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement in his own behalf.  The unit commander subsequently recommended separation from the service.  The intermediate commander recommended approval with an honorable discharge.  

5.  12 June 2007, the separation authority directed the applicant’s discharge with a characterization of service of honorable.

6.  A memorandum for record indicated the DD Form 214 previously distributed with the separation date of 28 June 2007 was voided and revoked.  The applicant was under criminal investigation by the Fort Hood Provost Marshal.

7.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on      8 August 2007, the applicant was charged with the following offenses:

     a.  absenting himself from his unit (AWOL) (070702-070802)

     b.  stealing an Xbox video game system, an Xbox 360 video game system, eight controllers, six video games, and one hundred compact disks, of a value in excess of $500, the property of PFC T.B.C (070628)

     c.  stealing fifty digital video disks and a knife, of a value of about $300, the property of PVT D.R. W (070628)

     d.  in the nighttime, unlawfully breaking and entering the barracks room of PV2 M.C, room 203 of building 9420, with intent to commit larceny therein (070628)

     e.  in the nighttime, unlawfully breaking and entering the barracks room of PVT M.W, room 219 of building 9420, with intent to commit larceny therein (070628)

     f.  in the nighttime, unlawfully breaking and entering the barracks room of PV2 P.A, room 226 of building 9420, with intent to commit larceny therein (070628)

     g.  in the nighttime, unlawfully breaking and entering the barracks room of PV2 M.W, room 229 of building 9420, with intent to commit larceny therein (070628)

     h.  in the nighttime, unlawfully breaking and entering the barracks room of PFC D.N, room 231 of building 9420, with intent to commit larceny therein (070628)

     i.  in the nighttime, unlawfully breaking and entering the barracks room of PV2 K.B, room 208 of building 9421, with intent to commit larceny therein (070628)

     j.  in the nighttime, unlawfully breaking and entering the barracks room of PV2 D.W, room 211 of building 9421, with intent to commit larceny therein (070628)

     k.  in the nighttime, unlawfully breaking and entering the barracks room of PV2 B.A, room 308 of building 9421, with intent to commit larceny therein (070628)

     l.  in the nighttime, unlawfully breaking and entering the barracks room of PFC R.D, room 319 of building 9421, with intent to commit larceny therein (070628)

8.  On 7 November 2007, 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 with an under other than honorable conditions discharge.  

9.  On 16 November 2007, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions

10.  The applicant was discharged from the Army on 21 November 2007, 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.

11.  The applicant's record of service shows he was AWOL during the period 2 July 2007 through 1 August 2007, for 30 days, mode of return unknown.  Also, the applicant was placed in pre-trial confinement for 88 days from 2 August 2007 through 30 October 2007.  Total time lost 118 days.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 2 November 2006, for underage drinking (060916), the punishment consisted of reduction to E-1 (suspended) and extra duty for 14 days, (CG).  However, this document is not contained in the available record, see unit commander’s recommendation memorandum.

2.  An Article 15, dated 2 November 2006, for failing to go at the time prescribed to his appointed place of duty; the punishment consisted of reduction to E-1, forfeiture of $303 pay, extra duty for 14 days and restriction for 14 days, (CG).  However, this document is not contained in the available record, see unit commander’s recommendation memorandum.

3.  He received a negative counseling statement, dated 30 April 2007 for being under Chapter 5-17.
4.  The record contains a pre-trial confinement order, dated 2 August 2002.

5.  The record contains two Military Police Reports dated 30 October 2007, which indicated the applicant was under investigation for committing several burglaries.

6.  A Chapter 5-13 discharge packet consisting of fifteen pages.

7.  A Memorandum, Order to Conduct a Sanity Board, dated 26 September 2007 to report as to the mental capacity and mental responsibility of the applicant.

6.  A Mental Status Evaluation, dated 20 March 2007 which indicated the applicant diagnosed with a personality disorder.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293; Applicant’s evidence/issues, ten pages, Military Police Report, eight pages, and a Memorandum, Revocation of previously issued DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant did not provide any with the application.

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 and a change to the narrative reason for separation was carefully considered.  However, after examining the applicant’s record of service, the issue and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge a change to the narrative reason for separation.

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 no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority and it does not support an upgrade to an honorable or a general discharge at this late date.  

4.  The applicant requested a change to the narrative reason for separation. However, the narrative reason for separation is governed by specific directives 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, for in lieu of trial by court-martial.  The regulation further stipulates that no deviation is authorized.  

5.  Issues 1, 3, 4, 5 and 8 are rejected.  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 contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged, or that his statement was not written by him and the contents were not to his knowledge, nor was he allowed to review his sworn statement as indicated in the Military Police Report prior to signing it.
6.  Issue 2 is rejected.  Regarding the applicant’s AWOL status that he was home when he was placed in an AWOL status; however, the evidence of record shows he was interviewed by law enforcement authorities and sometime between 30 June and 1 July 2007, the applicant went AWOL pending the results of the investigation and could not be located for a follow-up interview.

7.  Issue 6 rejected.  Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  Further, the evidence of record revealed the applicant and other Soldiers committed multiple burglaries of barracks rooms between 28 June 2007 and 29 June 2007. 

8.  Furthermore, 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.

9.  Issue 7 rejected.  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 had the opportunity to raise objections to the charges in the presence of his defense counsel at the time charges were preferred.

10.  Issue 9 rejected.  The evidence of record (Mental Status Evaluation) indicated the applicant’s condition and problems were not in the opinion of competent medical authority, amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty in the military.  While intensive efforts may result in transient improvements in behavior, such efforts are often short-lived in their efficacy and are unlikely to improve the Soldier’s retention potential.  It was unlikely any efforts to rehabilitate or develop this individual into a satisfactory member of the military would be successful.

11.  The records show the proper discharge and separation authority procedures were followed in this case.  

12.  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:  2 October 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)		AR20130005141

Page 9 of 9 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1