IN THE CASE OF:  	Mr. 

      BOARD DATE:  	22 January 2014

      CASE NUMBER:  	AR20130008133
___________________________________________________________________________

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 conditions.

2.  The applicant states, in effect, he served a total of 27 years of military service and had only five months remaining prior to his retirement. He had outstanding evaluations during this period.  He states he was not properly informed of the discharge in lieu of trial by court-martial; he was informed by counsel that there was no other option available.  In 1997, he was hospitalized due to a mental breakdown, was diagnosed with depression, and received medication.  During the period 1997 - 2001, he continued to see psychiatrists and psychologists and was diagnosed with bipolar 1 while stationed at Fort Lee, Virginia.  His condition worsened in 2001 due to his misdiagnosis with depression in 1997.  During the period 9 February 2001 - 5 February 2005, he tried to maintain his duties as a Soldier, but was unable to do so, because of improper medication.  On 29 September 2004, he had a manic episode which resulted in his arrest and imprisonment for five years on 5 June 2005.  Subsequently, he was discharged in lieu of trial by court martial, while serving time under civil authorities.  After reviewing AR 635-200, Chapter 10, paragraph 10-8, he understands the separation authority may have directed a general discharge, based on his overall record during the current enlistment.  His evaluations show that during the period he received an excellent rating.  He only had five months remaining on his four year enlistment at the time of his arrest. He would have retired with 28 years of service otherwise.  He requests the board consider his service which includes three honorable discharges.  The current discharge characterization has affected all of his education benefits, VA benefits, and he has been prejudiced in society.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		25 April 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			14 July 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:			1st USAMEDD RCTG DET, Fort Meade, Maryland
f. Current Enlistment Date/Term:	9 February 2001, 4 years
g. Current Enlistment Service:	4 years, 5 months, 6 days (The applicant’s record is 
      void of any reenlistment or extension contract that 
      authorized him to exceed the four years stipulated in 
      his last reenlistment on 9 February 2001.)
h. Total Service:			25 years, 3 months, 28 days
i. Time Lost:				3 days, (040929-041001)
j. Previous Discharges:		USAR (770326 - 770620) NA
   RA (770621 - 810622) HD 
      IRR (810623 - 811115) NA
      USAR (811116 - 830317) HD
      USAR (830318 - 890317) HD
   AGR (920309 - 010208) HD
k. Highest Grade Achieved:		E-7
l. Military Occupational Specialty:	79R10, Recruiter
m. GT Score:				106
n. Education:				HS Graduate
o. Overseas Service:			Korea, Germany
p. Combat Service:			None
q. Decorations/Awards:		ARCOM, AAM, AGCM-2, NDSM, GWOTSM 
KDSM, NPDR-3, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		No
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 21 June 1977 for a period of 6 years.  He was      18 years old at the time of entry and a high school graduate.  From 23 June 1981 - 17 March 1989 the applicant served in either the IRR or USAR.  He entered the AGR on 9 March 1992, and reenlisted on 9 February 2001, for period of four years.  He served in Korea and Germany.  He earned an ARCOM, AAM, two AGCMs, the NDSM and the GWOTSM.  He completed 4 years, 5 months, and 6 days of active duty service for the period under review.  Of note, the applicant’s record is void of any document extending him past the four year period of his last reenlistment.  He completed a total of 25 years, 3 months and 29 days of military 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 indicates the applicant was not available for signature.  

2.  The DD Form 214 indicates that on 14 July 2005, 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 (in lieu of trial by court-martial) with a reentry eligibility (RE) code of 4.

3.  The applicant’s record shows no disciplinary actions under the UCMJ; however, the record shows three days of time lost (04929 - 041001) and is recorded on the applicant’s DD Form 214.  

4.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 9 years, 2 months and 18 days of creditable active military service.  The report also includes the aforementioned lost time.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1. Nine NCOERs covering the period of October 1984 to September 2003.  The applicant received three of the reports during the period under review and was rated as “Among the Best” from his raters and received 1/1 and a 2/1 from the senior rater.  Of note, the senior rater was not qualified to rate the applicant on one of the reports.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, two DD Forms 214, DA Form 2-1, a self-authored statement, copies of his AMHRR documents, several medical treatment related documents, court documents reflecting his name change, copies of his five evaluations covering the period October 1978 - August 1983.

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 the characterization of his discharge was carefully considered.  However, after examining the applicant’s military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's 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 indicates the applicant was not available for 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.  Of note, the applicant did have a period of credible service (920309 - 010208) that was not reflected in part 18 (Remarks) on the DD Form 214. 

3.  The applicant's contentions about his medical issues including his alleged bipolar disorder 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.  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.  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:  22 January 2014     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)		AR20130008133



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1