IN THE CASE OF:  	Mr. 

      BOARD DATE:  	15 November 2013

      CASE NUMBER:  	AR20130008849
___________________________________________________________________________

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.  However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 27, contains the erroneous re-entry code of 3.  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 his under other than honorable conditions discharge be upgraded to general, under honorable conditions.

2.  The applicant states, in effect, his discharge was improper because he was experiencing an increase in mental health symptoms that he has continuously sought treatment for since his discharge.  He states he served the military to the best of his ability, however his mental health diagnosis of bipolar disorder became evident.  He contends his mental health condition was not addressed while he was in the military, which resulted in the incidents.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			6 May 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				31 January 2002
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:				84th Engineer Company, Fort Polk, LA
f. Current Enlistment Date/Term:		28 September 1999/4 years
g. Current Enlistment Service:		1 year, 6 months, 1 day
h. Total Service:				1 year, 6 months, 1 day
i. Time Lost:					302 days
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		12B10, Combat Engineer
m. GT Score:					NIF
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			No
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 28 September 1999 for a period of 4 years.  He was 18 years old at the time of entry and a high school graduate.  He was trained in and awarded the military occupational specialty (MOS) 12B10, Combat Engineer.  His record documents no acts of valor or significant achievement.  He completed 1 year, 6 months, and 1 days of active duty service.  When discharge proceedings were initiated, he was serving at Fort Polk, Louisiana. 
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 17 December 2001, the applicant was charged with violating Article 112a of the Uniform Code of Military Justice (UCMJ) based on wrongful use of marijuana.  

2.  On 21 December 2001, 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 his 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 and intermediate commanders recommended approval of an under other than honorable conditions discharge.  

3.  On 4 January 2002, 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 31 January 2002, with a characterization of service of under other than honorable conditions.

5.  The applicant’s record of service indicates 302 days of time lost for being AWOL from 
14 February 2001 until his surrender to military control on 12 December 2001.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There is one positive urinalysis report, dated 31 January 2001, indicating the applicant tested positive during a unit sweep for THC.

2.  One negative counseling statement dated 8 February 2001, for wrongful use of a controlled substance.

3.  A DD Form 214 (Certificate of Release from Active Duty), indicates that on 
31 January 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, (in lieu of trial by court-martial) with a reentry eligibility (RE) code of 3.

4.  DA Form 458 (Charge Sheet), on 17 December 2001, charges were preferred against the applicant for being absent without leave (AWOL) during the period 13 February 2001 through 13 December 2001 and for wrongful use marijuana between 2 January 2001 and 
23 January 2001.

5.  DA Form 2627 (Record of Proceedings under Article 15, UCMJ), for wrongful use of marijuana, a schedule 1 controlled substance.  As a note, DA Form 2627 indicates the Field Grade (FG) Article 15 was not processed because the applicant was AWOL, therefore it states the proceedings were deferred until 15 March 2001.  However, the unit dropped the applicant from the rolls on 13 December 2001.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 1 May 2013; and DD Form 214, authenticated by the applicant’s signature.  

POST-SERVICE ACTIVITY: 

The applicant did not provide any in support of his 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.  Army Regulation 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

3.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

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 was carefully considered.  However, after examining the applicant’s record of service, the issue and document 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 achievements 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 the discharge was improper because he was experiencing an increase in mental health symptoms that he has continuously sought treatment for since discharged.  However, the service record contains no evidence of a bipolar disorder diagnosis and the applicant did not submit any evidence to support his contention.  Furthermore,   lacking evidence to the contrary, the applicant’s request for separation for the good of the service to avoid trial by court-martial under provisions of Chapter 10 of Army Regulation 635-200 is presumed to have been voluntary, administratively correct, and in compliance with applicable regulations.  

5.  There is no evidence that shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

6.  The applicant’s record includes evidence which shows he was AWOL for 302 days, tested positive for THC, and received a negative counseling statement for wrongful use of a controlled substance.  Based on his record of indiscipline, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to a general discharge.  

7.  However, the service record reflects an erroneous entry on the applicant’s DD Form 214, block 27, RE code “3” was made during the discharge process.

8.  Accordingly, as approved by the separation authority, the following administrative corrections are recommended block 27, reentry code of 3 be changed to reentry code 4 as stipulated by the governing regulations.

9.  Except for the modifications as stated above the discharge was both proper and equitable, therefore, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review     Date:  15 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)		AR20130008849



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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