IN THE CASE OF:	 

      BOARD DATE:  	1 November 2013

      CASE NUMBER:  	AR20130007751
___________________________________________________________________________

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 honorable, and to change the reentry code from 4.

2.  The applicant states, in effect, an upgrade and a change of his reentry code would allow him to serve his country faithfully and loyally, again.  He served loyally with no problems until he arrived at Fort Stewart.  His personal reasons for going AWOL have been resolved.  Being an infantryman is all he knows.
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	22 April 2013 
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	10 April 2012
	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:	B Co, 3rd Bn, 69th Armor Regiment, 1st Heavy 
			BCT, Fort Stewart, GA
	f.	Current Enlistment Date/Term:	22 February 2010, 5 years
	g.	Current Enlistment Service:	2 years, 1 month, 19 days 
	h.	Total Service:	3 years, 8 months, 16 days
	i.	Time Lost:	None 
	j.	Previous Discharges:	RA (080725-100221) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	11B10, Infantryman
	m.	GT Score:	97
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Afghanistan (100130-110130)
	q.	Decorations/Awards:	AGCM; NDSM; ACM-2CS; GWOTSM; ASR; OSR 
			JMUA; MUC
	r.	Administrative Separation Board: 	No 
	s.	Performance Ratings:	None 
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 25 July 2008, and reenlisted on 22 February 2010, for a period of 5 years.  He was 22 years old at the time of entry and a high school graduate.  He served in Afghanistan.  His record documents no acts of valor or significant achievement.  He completed 3 years, 8 months, and 16 days of active duty service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 21 February 2012, the applicant was charged with the following offenses:

a.  Six specifications of Charge I, violation of the UCMJ, Article 86, failing to go to his appointed place of duty on three separate occasions (110818, 110819, 110830) and absenting himself without authority on three separate occasions (110820-110822, 110902-110903, 110912-120221) 

b.  Charge II, violation of the UCMJ, Article 91, disobeying an NCO (110910)

c.  Charge III, violation of the UCMJ, Article 134, wrongfully having sexual intercourse with a woman not his wife (110701-110912)

2.  On 28 February 2012, 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 own behalf.  The unit commander recommended approval of an under other than honorable conditions discharge.  

3.  On 26 March 2012, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 10 April 2012, with a characterization of service of under other than honorable conditions.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  DD Form 458, Charge Sheet, reflecting preferral of charges, dated 28 February 2012.

2.  Six negative counseling statements, dated between 18 August 2011 and 30 August 2011, for not being at his appointed place of duty; being absent without leave; failing to report for duty; being late for duty; failing to inform his leadership of key information; and being recommended for Article 15 action.

3.  DA Form 2627, Record of Proceedings under Article 15, UCMJ, dated 8 September 2011, indicating the applicant was notified of his commander considering UCMJ action for three violations of Article 86, failing to go to his appointed place of duty, with the commander not completing this action.  The cited violations were incorporated in the stated Charge Sheet at paragraph 1.

4.  Unit’s commander’s memorandum to the military magistrate, dated 23 February 2012, detailing justification for the applicant’s continued pretrial confinement, who was returned to the unit on 21 February 2012, after apprehension by civilian authorities.

5.  Confinement Order, dated 12 September 2011, referencing charges of Article 86 (Failure to Report), Article 92 (Failure to Obey an Order or Regulation), Article 111 (Drunken or Reckless Operation of a Vehicle); and, Article 134 (Adultery).

6.  Four state department uniform traffic citation, summons, and accusation, dated 2 September 2011, that indicates the applicant was cited for driving under the influence; safety restraint violation of an eight years of age or older; improper lane change; and operating a vehicle too fast for conditions. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none.

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 his characterization and a change to the reentry code was carefully considered.  However, after examining the applicant’s record of service, and the issues 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.  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 requests an upgrade of the characterization of his service and a change to the reentry code 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.  In addition, 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.  

5.  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:  1 November 2013      Location: Washington, DC

Did the Applicant Testify?  No 

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:		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)		AR20130007751

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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