IN THE CASE OF:  	Mr. 

      BOARD DATE:  	4 April 2014

      CASE NUMBER:  	AR20130012374
___________________________________________________________________________

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 his under other than honorable conditions discharge be upgraded to honorable, general, under honorable conditions, or uncharacterized.  

2.  The applicant states, in effect, he was a good Soldier and was treated with disgrace.  He requests the Board help turn the wrong of this discharge into a right.  He is asking for a second chance at life and wants his GI Bill, his medical benefits, and his life back.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			1 July 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				28 September 2011
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:				A Co, 26th BSB, 2 BCT, 3rd ID, Fort Stewart,							GA
f. Current Enlistment Date/Term:		2 April 2008/ 3 years, 22 weeks
g. Current Enlistment Service:		3 years, 5 months, 27 days
h. Total Service:				3 years, 5 months, 17 days (DD Form 214								reflects 3 years, 5 months, 1 day)
i. Time Lost:					10 days, Civilian Confinement 
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		92F10 Petroleum Supply Specialist
m. GT Score:					101
n. Education:					HS Grad
o. Overseas Service:				SWA
p. Combat Service:				Iraq (091028-101016)
q. Decorations/Awards:			ICM-2-CS, NDSM, ASR, OSR
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 2 April 2008, for a period of 3 years and 22 weeks.  He was 26 years old and a high school graduate.  His record documents no acts of valor or significant achievement.  

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence of record contains a DD Form 458, Charge Sheet which indicates on 18 August 2011, the applicant was charged with violation of UCMJ, Article 128.  He committed an assault upon SPC G, by stabbing him in the chest and shoulder with a dangerous weapon, to wit: a knife. 

2.  On 9 September 2011, 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 submitted a statement on his own behalf.  The unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge.  

3.  On 15 September 2011, 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.  On 28 September 2011 the applicant was discharged from the Army, with a characterization of service of under other than honorable conditions.

5.  The applicant’s DD Form 214 does not show any record of unauthorized absences or time lost.  However, a DD Form 458 reflects that the applicant was confined by civilian authorities for 10 days (28 June 2011 through 7 July 2011).  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Investigative Summary with allied documents pertaining to the above charges.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated June 2013, a DD Form 214, and a self-authored statement.


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.  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 discharge was carefully considered.  However, after examining the applicant’s record of service, 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.  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 he was treated with disgrace.  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.  

5.  The applicant contends that an upgrade of his discharge would allow medical and educational benefits through the use of the GI Bill.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

6.  The records show the proper discharge and separation authority procedures were followed in this case.  

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:  Records Review       Date:  4 April 2014       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:		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)		AR20130012374



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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