IN THE CASE OF:	Mr. 

      BOARD DATE:  	25 September 2013

      CASE NUMBER:  	AR20130006366
___________________________________________________________________________

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 to upgrade the characterization of his service from under other than honorable to honorable and his reentry code changed.

2.  The applicant states, in effect, he served his first enlistment contract without any incident.  He does not think his military career should be defined by the mistake he made, but the good service he provided his country.  He has been a contractor for over five years as an artillery tester; therefore, he has proven he is dependable. 

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	27 March 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions 
	c.	Date of Discharge:	10 June 2005 
	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:	A Btry, 1st Bn, 320th FA Rgmt, 2nd BCT, 101st 
			Airborne Division (Air Assault), Fort Campbell, KY 
	f.	Current Enlistment Date/Term:	28 September 2003, 4 years 
	g.	Current Enlistment Service:	1 year, 4 months, 02 days
	h.	Total Service:	3 years, 5 months, 22 days
	i.	Time Lost:	131 days 
	j.	Previous Discharges:	RA (010808-030927)/HD 
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	13B10, 2B Cannon Crewmember
	m.	GT Score:	NIF
	n.	Education:	HS Graduate 
	o.	Overseas Service:	SWA 
	p.	Combat Service:	Kuwait/Iraq (030228-050615) (Note that the tour 
			inclusive dates do not match the dates cited in the 
			ARCOM, the applicant received for the tour or the 
			AWOL dates and foreign service dates.)
	q.	Decorations/Awards:	ARCOM-2; AAM-3; NDSM; ICM; GWOTSM; NPDR 
			ASR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No 

SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 8 August 2001, and reenlisted on 28 September 2003, for a period of 4 years.  He was 20 years old at the time of entry and a high school graduate.  He served in Kuwait and Iraq.  He earned two ARCOMs and three AAM awards.  He completed 3 years, 5 months, and 22 days of active duty service.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 131 days of time lost for being AWOL on two separate occasions from 21 September until 30 September 2004, and from 26 October 2004 until 24 February 2005.  The latter AWOL indicates the mode of his return as surrendering to military authorities on 25 February 2005. 

2.  On 27 April 2005, 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 offenses outlined in the preceding paragraph.  

3.  On 16 May 2005, 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.  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 indicated he would submit a statement on his own behalf.  

4.  On 31 May 2005, 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.  

5.  On 10 June 2005, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 3 years, 5 months and 22 days of creditable active military service and accrued 131 days of time lost due to being AWOL.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There is no further evidence of derogatory information in the applicant’s record.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an ARCOM certificate; two AAM certificates; two certificates of achievement; four certificate of completing various trainings; OSUT diploma; AIT diploma; and PLDC diploma. 
POST-SERVICE ACTIVITY: 

The applicant states, in effect, that he has been employed as a contractor for five years at a military installation and as an artillery tester.  

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

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.  Although his record documents acts of significant achievement, they were determined not to 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.  Although the applicant made no contentions as to the reasons for having committed the misconduct that ultimately led to his separation, 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.  Moreover, records show the applicant's assigned RE Code of 4 is appropriate based on the authority and reason for his discharge.  Therefore, there is no basis for changing the applicant's RE Code and the applicant is no longer eligible for reenlistment.  

5.  Furthermore, the applicant contends the incident that caused his discharge is an incident that should not define his entire Army career.  However, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  There are circumstances in which the conduct warrants a punitive action, and subsequently, the applicant voluntarily requested discharge in lieu of trial by court-martial.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  

6.  The applicant also contends that since leaving the Army he has been employed continuously as a contractor and an artillery tester for five years.  The applicant’s post-service accomplishments have been noted as outlined on the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  

7.  Therefore, the reason and 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:  25 September 2013      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

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)		AR20130006366

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1