IN THE CASE OF:  	Mr. 

      BOARD DATE:  	26 February 2014

      CASE NUMBER:  	AR20130011568
___________________________________________________________________________

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 to general, under honorable conditions.

2.  The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being able to reenlist in the Montana Army National Guard.  He contends his desire is to be able to provide for his family, rectify mistakes made in the past and leave a lasting and honorable legacy for his children.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			17 June 2013
b. Discharge Received:			Uncharacterized
c. Date of Discharge:				5 May 2008
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, Chapter 10 								KFS, RE-4
e. Unit of assignment:				A Co, 2d Bn, 13 IN Rgt, Fort Jackson, SC
f. Current Enlistment Date/Term:		9 June 2006/ADT, 19 weeks
g. Current Enlistment Service:		6 months, 10 days
h. Total Service:				9 months, 28 days
i. Time Lost:					506 days 
j. Previous Discharges:			ARNG-060221-060608/UNC										    (Concurrent Service)
k. Highest Grade Achieved:			E-2
l. Military Occupational Specialty:		None
m. GT Score:					NIF
n. Education:					GED
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			None
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No







SUMMARY OF SERVICE:

The applicant enlisted in the Army National Guard on 21 February 2006, for a period of 8 years.  He was 26 years old at the time and had a high school equivalency (GED).  He was ordered to initial active duty for training (IADT).  He was attending training at Fort Sill, OK when his separation was initiated.  His record documents no acts of valor or significant achievements.  The NGB Form 22 in the applicant's record shows the applicant served in the Army National Guard (060202-070131); however, it should be noted the applicant entered active duty on (060609).  Therefore, it appears the NGB Form in the record is incorrect.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates that on    28 February 2008, the applicant was charged with going AWOL x 2 (060924-070908 and 070912-080213).

2.  On 29 February 2008, 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 UNC 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 recommended approval of an UNC discharge.  

3.  On 17 April 2008, the separation authority approved the Chapter 10 request and directed the applicant's discharge with a characterization of service of UNC.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 5 May 2008, with a characterization of service of UNC under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with a Separation Program Designator code (SPD) of KFS and an RE code of 4. 

5.  The applicant’s record of service indicates 506 days of time lost; 350 days for being AWOL from 24 September 2006 until his return on 8 September 2007 and 155 days for being AWOL 12 September 2007 until his apprehension on 13 February 2008.  The DD Form 214 under review also includes 63 days of excess leave for the period (080304-080505).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  DA Form 4187 (Personnel Action), dated 17 March 2008, changing the applicant's duty status from dropped from rolls to present for duty/returned to mil con.

2.  The applicant's record does not contain any recorded actions under the UCMJ or counseling statements.


EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, a NGB Form 22 for a prior period of service, and a DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

None were provide 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.  

2.  The characterization of service for Soldiers separated under this provision of the regulation will normally be UOTHC.  However for Soldiers in entry-level status, it will be UNC.  

3.  Army Regulation 635-200 states that a Soldier is in an entry-level status if the Soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action. 

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 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 evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the uncharacterized description of service accurately reflects the applicant’s overall record of service.  An uncharacterized discharge is neither positive nor negative and it is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  
4.  The separation authority approved the applicant's discharge as entry-level status, with the description of service as uncharacterized.  Army Regulation 635-200 provides in pertinent part, that a Soldier is in entry-level status for the first 180 days of continuous active duty.  

5.  A general, under honorable conditions discharge is not authorized under ELS conditions. 

6.  The applicant expressed his desire for an upgrade of his discharge for the purpose of being able to reenlist in the Montana Army National Guard.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 4.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.

7.  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.

8.  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:  26 February 2014       Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

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:		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)		AR20130011568



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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