IN THE CASE OF:  	

      BOARD DATE:  	28 August 2013

      CASE NUMBER:  	AR20130005443
___________________________________________________________________________

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 an upgrade of his discharge from under other than honorable conditions to general, under honorable condition and a change to the narrative reason for separation to include the reentry eligibility (RE) code.

2.  The applicant states, in effect, he was young and dumb.  He requested to remain in service, the commander said it would be easier for him to get out and rejoin after six months; he listened to his suggestion and separated from the military, only to find out he could never rejoin again.  He hopes to get another chance to serve in the Army if and when he decides to take it.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		18 March 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			27 May 2009
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:			C Co, 447th Signal Battalion, 15th Signal Brigade 						Fort Gordon, GA
f. Current Enlistment Date/Term:	20 March 2008, 6 years
g. Current Enlistment Service:	4 months, 19 days
h. Total Service:			4 months, 19 days
i. Time Lost:				293 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-1
l. Military Occupational Specialty:	None
m. GT Score:				116
n. Education:				GED Certificate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		None
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		No
u. Prior Board Review:			No

SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army 20 March 2008, for a period of 6 years.  He was 19 years old at the time of entry with a GED Certificate.  The record does not contain any evidence of acts of valor or meritorious achievements.  He was attending advanced individual training (AIT) at Fort Gordon, GA when he went AWOL.  He was returned to duty at Fort McPherson, GA and transferred to Fort Knox, KY, where his discharge was initiated.


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on      9 April 2009, the applicant was charged with absenting himself from his unit (AWOL) (080717-090406).  Of note, the evidence of record (DA Form 4187) shows the period of AWOL began on 17 June 2008. 

2.  On 9 April 2009, 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 did not submit a statement on his behalf.  The unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.  

3.  On 18 May 2009, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions

4.  The applicant was discharged from the Army on 27 May 2009, 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.

5.  The applicant's record of service shows he was AWOL during the period 17 June 2008 through 5 April 2009, for 293 days, until he surrendered.  The applicant also had 48 days of excess leave from 10 April 2009 through 27 May 2009.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The record of service does not contain any negative counseling statements or actions under the Uniform Code of Military Justice (UCMJ).

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, active certifications, career history, DD Form 214, and Discharge Orders 139-0163.

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 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 to include the reentry eligibility (RE) code.

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.  The applicant was discharged 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," the separation code is "KFS," and the reentry code is "RE 4."  

5.  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, separation code, entered in block 26, and RE Code, entered in block 27 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.

6.  The applicant contends he was young and dumb.  The record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

7.  The applicant further contends he requested to remain in service, the commander said it would be easier for him to get out and rejoin after six months; he listened to his suggestion and separated from the military, only to find out he could never rejoin again.  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.

8.  The applicant also contends he hopes to get another chance to serve in the Army if and when he decides to take it.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 4.  There was no basis upon which to grant a change to to the RE code.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 

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

10.  Therefore, the reason for discharge and the characterization of service to include the reentry eligibility (RE) code being both proper and equitable, recommend the Board deny relief.  


SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review           Date:  28 August 2013     Location: Washington, DC

Did the Applicant Testify:  No 

Counsel:  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:		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)		AR20130005443



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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