IN THE CASE OF:  	Mr.

      BOARD DATE:  	15 January 2014

      CASE NUMBER:  	AR20130010041
___________________________________________________________________________

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 an upgrade of his discharge from under other than honorable conditions to general, under honorable conditions discharge and a narrative reason change.

2.  The applicant states, in effect, that his decision to go AWOL was a result of the sexual trauma he received from another male Soldier.  He was ashamed and did not report the incident to anyone and is currently receiving treatment to deal with the continuing trauma.  He states the Board may request a copy of his medical treatment in order to corroborate his contention.  
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		28 May 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			7 May 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:			PCF PS BN USAFACFS, Fort Sill, Oklahoma
f. Current Enlistment Date/Term:	8 May 2004/3 years
g. Current Enlistment Service:	1 year, 2 months, 29 days
h. Total Service:			1 year, 2 months, 29 days
i. Time Lost:				275
j. Previous Discharges:		USAR (031031-040311), NA
k. Highest Grade Achieved:		E-1
l. Military Occupational Specialty:	13M10, MLRS HIMARS Crew
m. GT Score:				NIF
n. Education:				GED
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		No
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 8 May 2004 for a period of 3 years.  He was      20 years old at the time of entry and had a high school equivalency (GED).  He served in Korea and earned the NDSM and completed 1 year, 2 months, and 29 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 275 days of time lost for being AWOL between 2 April 2005 until his surrender to military authorities on 2 January 2006.

2. On 5 January 2006, a court-martial charge was preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) based on the AWOL offense outlined in the preceding paragraph.  On 6 January 2006, 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 for the good of the service 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 confirmed he had no desire to perform further military service and did not submit a statement in his own behalf.  

4.  On 22 March 2006, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued a UOTHC Discharge Certificate.  

5.  On 7 April 2006, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 1 year, 2 months, and        29 days of creditable active military service and accrued 275 days of time lost due to being AWOL.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There are no negative counseling’s or actions under the Uniform Code of Military Justice.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 214, a DD Form 293, DD Form 149, a self-authored statement, informational documents regarding Army AWOL, a letter of debarment, three DA Forms 31, a copy of an Army Emergency Relief check, attachment orders to Fort Buchanan, Puerto Rico, a Certificate of No Penal Record, and two letters of support.  Of note, the letters of support were from the applicant’s grandmother and aunt.  

     a.  The applicant’s grandmother contends the applicant was very happy with his family  and communicative.  He joined the military in search of a better life.  After the incident he was irreversible quiet, sad, and uncommunicative.  As a result his family disintegrated and he divorced his spouse.  He was depressed and had several relapses to the extent that he was hospitalized.  He currently is receiving treatment to better his situation and his mental health.

     b.  The applicant’s aunt contends she has interacted with the applicant enough to comment on his state of health.  When the applicant was young he was very happy, talkative, helping and had good feelings.  He had a desire to study for the future and start his own family.  For this reason he enlisted in the military to have the opportunity to achieve his dreams.  After this period in his life, he returned and was not the same.  His dreams were stopped and he became depressed, of which has been impossible to recover.  Currently he continues to fight his health problems.  His home disintegrated and ended in divorce.  He has two children which are his reason for recovery and for living. 

POST-SERVICE ACTIVITY: 

None 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 his characterization and a change to his reentry code was carefully considered.  

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 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 an honorable or a general discharge by the separation authority at the time of discharge and it does not support an upgrade to an honorable or a general discharge at this late date.  

4.  The applicant contends that his decision to go AWOL was a result of the sexual trauma he received from another male Soldier.  He was ashamed and did not report the incident to anyone and is currently receiving treatment to deal with the continuing trauma.  He states the Board may request a copy of his medical treatment in order to corroborate his contention.  However, the burden of proof rests with the applicant and it is not within the Board’s purview to make such a request.  Further, the applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  Moreover, records show the applicant's assigned RE Code of 4 is appropriate based on the authority and reason for his discharge.  Therefore, there is no basis for changing the applicant's RE Code and the applicant is no longer eligible for reenlistment. 

5.  Therefore, the RE code and characterization of service being both proper and equitable, recommend the Board deny relief.

6.  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:  Records Review     Date:  15 January 2014     Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  1	No Change:  4
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)		AR20130010041

Page 5 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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