IN THE CASE OF:  	Mr.

      BOARD DATE:  	27 September 2013

      CASE NUMBER:  	AR20130006805
___________________________________________________________________________

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 his under other than honorable conditions discharge be upgraded to honorable or to general, under honorable conditions.  

2.  The applicant states, in effect, that he has been trying to reenlist and regrets the mistake he made.  His recruiter informed him that he would not have to ship out until after his stepdaughter’s birthday.  Instead after he signed the enlistment contract he was informed that his ship date could not be changed and he would be leaving two weeks later.  He aggravated a previous injury to his hip and was placed on crutches and was unable to train, and knew he would be recycled.  After seven weeks of basic training he went AWOL.  He returned and spent a week at Fort Knox where he was out-processed.  He loves and supports his country and the troops, and would do almost anything to be a Soldier again.  He feels that he has let his country down.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			5 April 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				25 November 2008
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:				D Co, 2d Bn, 58th IN Rgt, Fort Benning, GA		
f. Current Enlistment Date/Term:		21 May 2008, 3 years, 16 weeks
g. Current Enlistment Service:		0 years, 4 months, 9 days
h. Total Service:				0 years, 6 months, 4 days
i. Time Lost:					56 days, AWOL (080706-080901)
j. Previous Discharges:			ARNG (060718-080404), UNC
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		None
m. GT Score:					101
n. Education:					HS Grad
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			None
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No



SUMMARY OF SERVICE:		

1.  The record shows the applicant enlisted in the Army National Guard on 18 July 2006 for a period of 8 years in the pay grade of E-3.  He was 17 years old and a high school graduate. The applicant acquired the MOS of 11B10 (Infantryman), and received an uncharacterized discharge for failing to ship to active duty training, and for failing to attend drill on 4 April 2008. 

2.  The record shows the applicant enlisted in the Regular Army on 21 May 2008 for a period of 3 years, 16 weeks.  He was 19 years old and was a high school graduate.  He did not acquire an MOS.  His record documents no acts of valor or significant achievement.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 56 days of time lost for being AWOL from 6 July 2008 until his apprehension on 2 September 2008.  

2. On 10 September 2008, 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 11 September 2008, 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 not submit a statement in his own behalf.  

4.  On 28 October 2008, 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 25 November 2008, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 4 months and 9 days of creditable active military service and accrued 56 days of time lost due to being AWOL.  He was apprehended and returned to military control.


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:

The applicant provided a DD Form 214 with his application.

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 discharge 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 requests a change to the characterization of his service in order to rejoin the Army.  However, at the time of discharge, the applicant received an under other than honorable conditions characterization of service.  Army Regulation 601-280 stipulates that an under other than honorable conditions discharge constitutes a non-waivable disqualification, thus the applicant is no longer eligible for reenlistment.  

5.  The applicant contends that he was having family issues and that he was misinformed about his shipping date.  He also contends that he went AWOL because he re-aggravated a previous hip injury.  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.  

6.  Therefore, the reason for the discharge 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:  27 September 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)		AR20130006805

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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