IN THE CASE OF: 	Mr. 

      BOARD DATE:  	22 November 2013

      CASE NUMBER:  	AR20130008565
___________________________________________________________________________

Board Determination and Directed Action

1.  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.

2.  However, notwithstanding the propriety of the applicant’s discharge, the Board found that the applicant’s DD Form 214, block 27 contains the erroneous reentry code of 3.    

3.  In view of the error, the Board directed an administrative correction to block 27 to read RE-4, as required by Army Regulations.




      
      
      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.

2.  The applicant states, in effect, when he signed the paperwork to receive additional benefits based on being married, he was under the influence of narcotics, “Percocet” and other medications for back injury he suffered from during “Operation Iraqi Freedom.”  He always had a learning disability and barely made it into the military.  He barely scored high enough to make it into the Marine Corps, which he served “honorably,” prior to serving in the National Guard.  Shortly after getting married, he was deployed and activated to go to Iraq and to Texas for three-month training.  The deployment quickly deteriorated his marriage and the lack of communication from him to his spouse while in Iraq caused her to want a divorce.  He suffered multiple medical conditions resulting from his service in both the Marine Corps and the National Guard.  He is unable to obtain assistance due to his current discharge.  He is nearly blind in one eye and suffered internal bleeding from ulcers.  He has problems with varicose veins that required to be stripped from the inside of his right leg and has spinal bifida from his back injury in Iraq.  He has anxiety issues and problems sleeping that have all resulted from being in combat in Iraq.  He has been forced to work in a lumberyard since his discharge and is unable to seek any type of VA vocational rehabilitation training to help him get out of something that his body would not allow him to do any longer.  He is forced to live with his parents due to the child support he has to pay and not being able to afford a place of his own.  He is asking for mercy and consideration to reverse his current discharge, because he was not aware of what he was doing wrong at the time and he does not believe he committed any type of offense.  He was seen by numerous doctors since his separation for conditions resulting from his military service.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	2 May 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	17 February 2006
	d.	Reason/Authority/SPD/RE Code:	In Lieu of Trial by Court-Martial, AR 635-200, 
			Chapter 10, KFS, RE-3
	e.	Unit of assignment:	Co A, 3rd Infantry Battalion, Fort Richardson, AK
	f.	Current Enlistment Date/Term:	13 October 2004, mobilization
	g.	Current Enlistment Service:	1 year, 4 months, 5 days 
	h.	Total Service:	7 years, 4 months, 13 days
	i.	Time Lost:	None
	j.	Previous Discharges:	USMC (980511-020510) / HD
			ARNG (021021-041012) / NA
	k.	Highest Grade Achieved:	E-4 
	l.	Military Occupational Specialty:	11B10, Infantryman
	m.	GT Score:	98
	n.	Education:	HS Graduate
	o.	Overseas Service:	AK, SWA
	p.	Combat Service:	Iraq (NIF)
	q.	Decorations/Awards:	MCGCM; NDSM; ICM; GWOTSM; OSR; AFRM-M 
			DEV
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No 

SUMMARY OF SERVICE:  

The applicant served in the U.S. Marine Corps for four years and enlisted in the Army National Guard on 21 October 2002, for a period of 3 years and 27 weeks, and on 13 October 2004, his unit was mobilized for a period of up to 545 days.  His service under current review includes being extended due medical holdover and involuntary retention on active duty pending CID investigation and court-martial.  He was 26 years old at the time of his enlistment with the ARNG and a high school graduate.  He served in Iraq and Alaska.  His record documents no acts of valor or significant achievement.  He completed 7 years, 4 months, and 13 days of reserve and active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 25 January 2006, the applicant was charged with the following offenses:

a. larceny of BAH, COLA, and FSA, military property of a value more than $500 (041227-050930)
b. made false official statement (050930) 
c. dereliction of duty (041227-050929)

2.  On 3 February 2006, 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 submitted a statement on his own behalf.  The unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge.  

3.  On 14 February 2006, 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 17 February 2006, 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, preferral date of 25 January 2006, indicates the applicant was charges with the following offenses:

	a. Charge I, violation of Article 121, UCMJ: larceny of BAH, COLA, and FSA, military property of a value more than $500 (041227-050930)

	b. Charge II, violation of Article 107, UCMJ: made false official statement (050930)

	c. Charge III, violation of Article 92, dereliction of duty (041227-050929)

2.  DA Form 2823, Sworn Statement, dated 8 November 2005, rendered to law enforcement officials (CID) by the applicant.

3.  An order, dated 13 January 2006, indicates the applicant was ordered to active duty for UCMJ processing, with a report date of 24 January 2006.  Orders attached to the aforementioned order, dated 21 October 2004 and 10 September 2004, indicates the applicant’s unit and his initial mobilization date of 13 October 2004.

4.  DA Form 4187, Personnel Action, dated 12 January 2006, indicates the applicant was involuntarily retained on active duty pending CID investigation, subject to preferral of charges under UCMJ with view toward court-martial.

5.  DA form 3881, Rights Warning Procedure/Waiver Certificate, dated 8 November 2005, indicates the applicant was the subject of an investigation for fraud and larceny of Government funds.

6.  An order, dated 2 August 2005, indicates the applicant was being retained on active duty to voluntarily participate in Reserve component medical holdover medical retention for completion of medical care and treatment, with a report date of 29 July 2005.  


EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant did not provide additional evidence.

POST-SERVICE ACTIVITY: 

The applicant states, in effect, he is forced to work in a lumber yard.



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 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 service also record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 3.  The discharge packet confirms the separation authority approved the applicant’s request for discharge in lieu of trial by court-martial, Chapter 10, AR 635-200.  AR 635-5-1, (Separation Program Designator Codes) and Cross Reference Table shows that a Soldier processed for discharge in lieu of trial by court-martial will be assigned an SPD Code of KFS and an RE Code of 4.  

3.  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 contends that he had good service which included serving honorably in the Marine Corps and serving in Iraq.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused his request to be discharge in lieu of trial by court-martial were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the serious incidents of misconduct in violations of the Uniform Code of Military Justice. 

5.  The applicant contends he suffers from medical conditions resulting from his military service and is unable to obtain VA assistance due to his current discharge status.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

6.  Therefore, the reason and characterization of service being both proper and equitable, recommend the Board deny relief.  In addition, notwithstanding the propriety of the discharge, recommend the Board change block 27, reentry code to 4, as approved by the separation authority.  


SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review     Date:  22 November 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:		Yes
Change Characterization to:	No Change
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		4
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)		AR20130008565

Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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