IN THE CASE OF:  	Mr. 

      BOARD DATE:  	13 January 2014

      CASE NUMBER:  	AR20130009444
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and hearing his testimony notwithstanding the examiner’s Discussion and Recommendation that follows, the Board determined that the characterization of service was too harsh based on the applicant’s length of service to include his combat service and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  The Board determined the reason for discharge was proper and equitable and voted not to change it.  

The applicant’s DD Form 214 was issued with errors on blocks 4a and 4b, as grade/rank of 
E-2/PV2, but should have been issued as E-1/PVT, as a consequence of the Chapter 10 discharge process.  The Board action to change the characterization, nullified the administrative error and therefore it is not necessary to reinstate grade/rank.




      
      
      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 an upgrade of his under other than honorable conditions discharge to honorable, and a change to the narrative reason for separation.  

2.  The applicant states, in effect, that the actions which were the basis for his discharge were directly related to the stress of being in Iraq and seeing what was happening around him every day.  He knows that he was wrong in his actions, but he feels that he was targeted after his commander performed an illegal search on his quarters.  He loves his country and was willing to give his life for it.  He never had any problems while he served.  One of his close friends was killed by an RPG, and since that event he has not been the same person.  He wants his discharge upgraded so that he can get help for himself.  He takes full responsibility for his actions.  
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			15 May 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				2 June 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:				HHC, 2-2 Inf Reg, 3rd Bde, 1st Inf Div
      Vilseck, Germany 	
f. Current Enlistment Date/Term:		1 October 2002, 3 years
g. Current Enlistment Service:		2 years, 8 months, 2 days
h. Total Service:				2 years, 8 months, 2 days
i. Time Lost:					None
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		63M10, Bradley Fighting Vehicle System 								Maintainer					
m. GT Score:					103
n. Education:					GED
o. Overseas Service:				Germany, SWA
p. Combat Service:				Iraq
q. Decorations/Awards:			NDSM, GWOTEM, GWOTSM, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No


SUMMARY OF SERVICE:		
	
The record shows the applicant enlisted in the Regular Army on 1 October 2002, for a period of 3 years.  He was 18 years old and with a GED.  He was trained in and awarded military occupational specialty (MOS) 63M10, Bradley Fighting Vehicle System Maintainer. When his discharge proceeding were initiated he was serving at Vilseck, Germany.  His record documents no acts of valor or significant achievement. 

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 10 May 2005, court-martial charges were preferred against the applicant for the following offenses:

	a.  On or about 29 April 2004, willfully failed to keep proper accountability of a sensitive item (his M16 rifle). 
	b.  On or about 17 July 2004, willfully pointed his M16 rifle at another Soldier without just cause. 
	c.  On or about 1 May 2004, and 30 July 2004, willfully failed to remain in the proper uniform while on guard duty.
	d.  On or about 1 May 2004, and 30 July 2004, willfully role played hand-to-hand combat with a local Iraqi national while on guard duty, by allowing the local national to point a weapon at him and engage in physical contact.  
	e.  On or about 1 May 2004, and 30 July 2004, violated a lawful general order, to wit:  GO #1, 1st Inf Div, dated 4 February 2004, by possessing pornographic material.
	f.  On or about 1 May 2004, and 30 July 2004, wrongfully made disrespectful and demeaning remarks to foreign nationals, members of the host nation.
	g.  On or about 1 May 2004, and 30 July 2004, dereliction in the performance of duties by willfully simulating “mock” combat situations while on duty in guard tower, by firing his weapon.
	h.  On or about 1 May 2004, and 30 July 2004, wrote vulgar language on two separate signs and had a local Iraqi national hold it while posing for two separate pictures.
	i.  On or about 1 May 2004, and 30 July 2004, posed for numerous photos to simulate “mock” combat situations for his own personal memoirs.
	j.  On or about 1 May 2004 and 30 July 2004, made a video with several local Iraq nationals, which contained certain indecent language.

2.  On 12 May 2005, 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 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 did not provide a statement on his behalf.  

4.  On 26 May 2005, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued an under other than honorable conditions discharge certificate.  

5.  On 2 June 2005, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 2 years, 8 months and 2 days of creditable active military service and accrued no lost time.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  DD Form 458, Charge Sheet, preferred charges.

2.  An AR 15-6 investigation, with allied documents, approved 17 January 2005.  The investigation addressed the facts and circumstances surrounding the various forms of inappropriate conduct with Iraqi local nationals by the applicant.  

3.  Article 15, dated 19 August 2004, for being found sleeping on his lookout post, and failing to remain in the proper uniform for guard duty (040724).  The punishment consisted of reduction to E-2, forfeiture of $335.00, extra duty for 14 days, and an oral reprimand (CG).  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application for discharge upgrade, dated 22 May 2013; a DD Form 214; and four statements of support.

POST-SERVICE ACTIVITY: 

None submitted by the applicant.

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), in effect at the time, 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.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his discharge characterization and a change to the reason for the discharge was carefully considered.  

2.  The evidence of record confirms the applicant was charged with the commission of several offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge 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 applicant contends that his service accomplishments prior to the incidents that caused his discharge warrant an upgrade of his characterization.  However, 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 a general, under honorable conditions due to the seriousness of the applicant’s offenses.  

4.  The applicant contends that the stress of being in Iraq directly relates to his discharge.  However, the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  

5.  The applicant contends he was targeted after his commander performed an illegal search on his quarters and he had no other problems during his time in service.  However, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   The character of the applicant’s discharge is commensurate with his overall service record. 

6.  The applicant requested a change to the narrative reason for the discharge.  The applicant was separated under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial" and the separation code is "KFS."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  

7.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.  

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance    Date:  13 January 2014    Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel:  Yes [redacted]

Witnesses/Observers: None 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a. Letter of Support, MSG JW, USA Ret, 1 page
	b. Letter of Support, Ms BA, dtd 12 Jan 2014, 1 page
	c. Letter of Support, Ms FT, dtd 4 Feb 2013, 1 page
	d. Letter of Support, SPC MB, dtd 11 Jan 2014, 1 page

2.  The applicant presented the additional contention:

	a. Change narrative reason to ‘Secretarial Authority’

In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

Board Vote:
Character Change:  3	No Change:  2
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:	General, Under Honorable Conditions
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		E-2/PV2
Other:					The applicant’s DD Form 214 was issued with administrative errors on blocks 4a and 4b, as grade/rank of E-2/PV2, but should have been issued as E-1/PVT, as a consequence of the Chapter 10 discharge process.  The Board action to change the characterization, nullified the error and therefore it is not necessary to reinstate grade/rank.
































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)		AR20130009444



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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