IN THE CASE OF:	Mr. 

      BOARD DATE:	11 December 2013

      CASE NUMBER:	AR20130009601
___________________________________________________________________________

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 general, under honorable conditions.  

2.  The applicant in his self-authored statement, in pertinent part and in effect, states, he served for eleven years and ten months in the US Army.  He enjoyed his time in service.  Although he had some challenges, he was always willing to conform to the uniform code of military justice.  In view of all his accomplishments, it would reflect that he always placed his career first and completed any and all of his assignments.  Since his discharge from the US Army, he established himself as a productive member of society.  He is very proud to say that the best decision he ever made was serving his country.  If granted an upgrade of his discharge that he feels he deserves, it would fulfill what he set out to accomplish eleven years ago, honorably.  

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	16 May 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	14 June 2001
	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:	51st Trans Co, 181st Trans Bn, 2nd Signal Brigade 
			Mannheim, Germany
	f.	Current Enlistment Date/Term:	25 February 1999, 5 years
	g.	Current Enlistment Service:	2 years, 3 months, 20 days
	h.	Total Service:	11 years, 10 months, 24 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (890721-920403) / HD
			RA (920404-931210) / HD
			RA (931211-960528) / HD
			RA (960529-990224) / HD
	k.	Highest Grade Achieved:	E-5
	l.	Military Occupational Specialty:	88M10, Motor Transport Operator
	m.	GT Score:	95
	n.	Education:	GED
	o.	Overseas Service:	Germany, SWA, Somalia
	p.	Combat Service:	None
	q.	Decorations/Awards:	ARCOM; AAM; AGCM-2; NDSM; AFEM; SWASM-3BS 
			NPDR-2; ASR; OSR; KLM (SA); MUC
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	Yes
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No 


SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 21 July 1989, and reenlisted four times.  The latter reenlistment was on 25 February 1999, for a period of 5 years.  He was 18 years old at the time of entry and had a high school equivalency (GED).  He served in Germany, Kuwait, and Somalia.  He earned an ARCOM and an AAM.  He completed 11 years, 10 months, and 24 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 4 October 2001, the applicant was charged with the following offenses:

	a.	making a false official statement to his 1SG (001013)
	b.	with intent to deceive, signing an official record, to wit: BAQ and/or VHA (001019)
	c.	larceny of government property, an amount in excess of $3,484 (010228)
	d.	impersonating an NCO with intent to defraud the US Government (001013 and 010220)

2.  On 17 May 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 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 and intermediate commanders recommended approval of an under other than honorable conditions discharge.  

3.  On 5 June 2001, 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 14 June 2001, 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, indicates that on 4 October 2001, the applicant was charged with the following offenses:

	a.	making a false official statement to his 1SG (001013),
	b.	with intent to deceive, signing an official record, to wit: BAQ and/or VHA (001019),
	c.	larceny of Government property, an amount in excess of $3,484 (010228), and
	d.	impersonating an NCO with intent to defraud the US Government (001013 and 010220).
2.  There is an Article 15 on file; however, it is a record from a prior period of service, and not applicable to the record of service under current review.

3.  One NCOER covering the period of February 1999 to January 2000, for the period of service under current review.  The applicant was rated as “Marginal” and received 4/5 from the senior rater.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided with his self-authored statement, three character reference letters, dated 22 April 2013; 1 May 2013; and 8 May 2013.

POST-SERVICE ACTIVITY: 

The applicant states, in effect, since his discharge from the US Army, he established himself as a productive member of society.  

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 of service was carefully considered.  However, after examining the applicant’s record of service, and the issues and documents 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.  Although his record documents acts of significant achievement, they 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 receiving an ARCOM and an AAM, and numerous other military awards and decorations.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding 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 that led to his discharge.

5.  The applicant contends that since leaving the Army he has established himself as a productive member of society.  The applicant’s post-service accomplishments have been noted as outlined on the application or his self-authored statement.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  

6.  In addition, the third party statements provided with the application speak highly of the applicant’s performance.  They all recognize his good conduct during his service in the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant’s chain of command.  As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity or evidence toward an upgrade of his discharge.

7.  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:  11 December 2013     Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  2	No Change:  3
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)		AR20130009601

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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