IN THE CASE OF:  	Ms.

      BOARD DATE:  	4 September 2013

      CASE NUMBER:  	AR20130012479
___________________________________________________________________________

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 to be 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 her uncharacterized discharge to honorable and a change in the reason for her separation.  

2.  The applicant states, in effect, that she feels she was given a very harsh punishment by having a Chapter 10 discharge with an SPD code of KFS.  She admits that she did wrong by going AWOL and should have fought harder but was very young at the time.  She alleges that she was raped by a drill sergeant and after being released on a pass, she never went back.  She was scared, called the unit commander and after explaining the situation she was told there would be a company level meeting and she freaked out.  She is now a strong woman and desires to go into the law enforcement field but her discharge haunts her to this day.  She asks for a clean slate.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			8 July 2013
b. Discharge Received:			Uncharacterized
c. Date of Discharge:				22 December 2004
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:				D Co, 554th EN Battalion, Fort Belvoir, VA
f. Enlistment Date/Term:			17 February 2004, 4 years
g. Current Enlistment Service:		0 years, 5 months, 16 days
h. Total Service:				0 years, 5 months, 16 days
i. Time Lost:					140 days
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-1
l. Military Occupational Specialty:		None
m. GT Score:					105
n. Education:					HS Graduate
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 record shows that on 17 February 2004, the applicant joined the Regular Army for a period of 4 years.  She was 19 years old at the time and was a high school graduate.  She was stationed at Fort Belvoir, VA, attending training when her discharge proceedings were initiated.
Her record documents no acts of valor or significant achievement.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 140 days of time lost for being AWOL twice, from 5 July 2004 until her apprehension on 21 November 2004.

2. On 2 December 2004, court-martial charges was preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) based on the AWOL offenses outlined in the preceding paragraph.  

3.  On 2 December 2004, 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 her.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

4.  In her request for discharge, the applicant acknowledged that by submitting the request for discharge she was admitting she was guilty of the charges against her or of a lesser-included offense that also authorized the imposition of a bad conduct discharge.  She also confirmed her understanding that if his request for discharge was approved, she could receive an under other than honorable conditions discharge.  She further stated she understood that receipt of an under other than honorable conditions discharge could result in her being deprived of many or all Army benefits, her possible ineligibility for many or all benefits administered by the Veterans Administration, and she could be deprived of her rights and benefits as a veteran under State and Federal laws.  The applicant confirmed she had no desire to perform further military service and did not submit a statement in her own behalf.  

5.  On 13 December 2004, the separation authority approved the applicant's request for discharge and directed she be separated from the Army with an uncharacterized discharge.

6.  On 22 December 2004, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) she was issued shows she completed 5 months and 16 days of creditable active military service and accrued 140 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 no supporting documentation with her application.

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 the characterization of her discharge and a change to the reason for the discharge was carefully considered.  However, after examining the applicant’s record of service and the issues 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 from the Army 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.  An under other than honorable conditions discharge is normal and appropriate under the regulatory guidance.  However, the record indicates the separation authority approved the discharge as an entry level status separation with her service described as uncharacterized.  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 the character of service to be rated as honorable or otherwise.  

4.  An honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct or performance of duty.  The applicant’s service record indicates no such unusual circumstances were present and did not warrant an honorable discharge.  

5.  The applicant contends that she was raped by a drill sergeant and went AWOL to never return.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support the issues.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that she was raped or unjustly discriminated.  In fact, the applicant’s AWOL period for 140 days justify her discharge from the Army.  The applicant’s statements alone do not overcome the government’s presumption of regularity and she has not provided any additional corroborating and supporting documentation or further evidence with her request for an upgrade of the discharge.   

6.  The applicant contends the narrative reason for the discharge should also be changed.  However, the applicant was separated under the provisions of Chapter 10, AR 635-200 with an uncharacterized discharge.  The narrative reason specified by Army Regulations for a discharge under this chapter 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.  The applicant also contends that she was young and immature at the time of the discharge, would like to get into the law enforcement field and asks for a clean slate.  However, the record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.  Moreover, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

  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:  4 September 2013      Location:  Washington, DC

Did the Applicant Testify?  No

Counsel: None

Witnesses/Observers: NA
 
Board Vote:
Character Change:  0	No Change:  5
Reason Change:	1	No Change:  4
(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)		AR20130012479

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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