IN THE CASE OF:	Mr. 

      BOARD DATE:  	18 October 2013

      CASE NUMBER:  	AR20130006472
___________________________________________________________________________

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 his characterization of service from under other than honorable to general, under honorable conditions or honorable, and to change the narrative reason for his discharge.  

2.  The applicant states, in effect, he was accused of misconduct with a female enlisted trainee.  This was not proven, nor was there evidence to support the charge.  He would understand the military’s position in protecting our trainees; however, the young trainee wrote a letter stating the he didn’t do what he was accused of, and that her friends and CID got her to say things that got twisted.  He took the discharge without court-martial, because he was led to believe that it was going to trial then after signing the discharge, his CSM told him that everything was going to be reduced to an Article 15.  He is only asking to have his discharge changed so that he can continue to serve his country in other ways.  His experience in the Army has given him great skills in logistics where he works as a disaster response specialist.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	1 April 2001
	b.	Discharge Received:	Under Other Than Honorable Conditions 
	c.	Date of Discharge:	31 May 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:	HQ/Co A, 1st Bn, 28th INF, Fort Jackson, SC
	f.	Current Enlistment Date/Term:	13 April 2000, 3 years 
	g.	Current Enlistment Service:	2 years, 1 month, 18 days 
	h.	Total Service:	10 years, 7 months, 29 days
	i.	Time Lost:	None 
	j.	Previous Discharges:	ARNG (911002-920615) / NA
			ADT    (920616-921021) / UNC
			ARNG (921022-930615) / HD
			RA      (930616-960328) / HD
			RA      (960329-000412) / HD 
	k.	Highest Grade Achieved:	E-6
	l.	Military Occupational Specialty:	92Y10, Unit Supply Specialist 
	m.	GT Score:	88
	n.	Education:	HS Graduate 
	o.	Overseas Service:	Hawaii 
	p.	Combat Service:	None 
	q.	Decorations/Awards:	ARCOM-3; AAM-2; AGCM-2; NDSM-2; NPDR; 
			ASR; OSR-2
	r.	Administrative Separation Board: 	No 
	s.	Performance Ratings:	Yes 
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No 

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 16 June 1993, after serving with the Army National Guard, and was on his second reenlistment for a period of 3 years when he was discharged.  He was 20 years old at the time of entry and a high school graduate.  His record shows two overseas tours, one in Hawaii and the other overseas tour is not on file.  He earned two ARCOM and two AAM awards.  He completed 10 years, 7 months, and 29 days of active duty and reserve service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s 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 31 May 2002, the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the Service 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 applicant’s available record does not show any evidence of actions under the UCMJ or unauthorized absences or time lost.

4.  On 21 May 2002, HQDA USA Training Center and Fort Jackson, Fort Jackson, SC, Orders Number 141-1311, discharged the applicant from the Army effective 31 May 2002.

5.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  One NCOER covering the period of January 2001 to December 2001, which rated the applicant as “Among the Best” and the senior rater did not “meet minimum qualifications.”

2.  One NCOER covering the period of February 2000 to December 2000, which rated the applicant as “Among the Best” and received 1/1 from the senior rater.

3.  DA Form 1059, Service School Academic Evaluation Report, dated 18 December 2001, indicates the applicant achieved course standards of phase 2 BNCOC.

4.  DA Form 1059, Service School Academic Evaluation Report, dated 20 September 2001, indicates the applicant achieved course standards of phase 1 BNCOC.


EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided no further evidence. 

POST-SERVICE ACTIVITY: 

The applicant provided none.  

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 the characterization of his discharge and a change to the narrative reason for his discharge was carefully considered.  However, after examining the applicant’s military records and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for his discharge.  

2.  The applicant’s 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's contentions of refuting the court-martial charge(s) that led to his discharge were carefully considered.  However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service.  Moreover, there is a presumption of regularity in the conduct of governmental affairs.  This presumption is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted or a change to the narrative reason for his discharge.  The applicant’s statements alone do not overcome the presumption of government regularity in this case and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge.  

4.  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.

5.  The applicant contends the narrative reason for the discharge should be changed because his discharge was unfair as there was no evidence to support the charge that led to his discharge.  However, the applicant was separated under the provisions of Chapter 10, AR 635-200 with an under other than honorable conditions discharge pursuant to approval of his request.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," and the separation code is "KFS."  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 and separation code, entered in block 26 of the form, will be 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 desires to rejoin the Military Service and continue to serve his country.  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.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 

7.  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:  Records Review         Date:  18 October 2013        Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  1	No Change:  4
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)		AR20130006472

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1