IN THE CASE OF:  	Mr. 

      BOARD DATE:  	25 September 2013

      CASE NUMBER:  	AR20130013070
___________________________________________________________________________

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 his under other than honorable conditions discharge be upgraded to honorable or general, under honorable conditions and a change to the reason for his separation.

2.  The applicant states, in effect, that his discharge was inequitable because he was having serious family problems that led to his AWOL offense.  At the time of his enlistment he was 18 years old and recently married.  His wife became depressed and the situation at home became very difficult.  He was on orders for Germany that were changed for Korea and he ended up going home on emergency leave.  He was able to find employment and seek help for his wife.  He is now working in the hospitality industry, is enrolled in college, and has earned some college credits.  He feels that with the proper assistance he would have been successful in his Army career and would not have received his current discharge.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			16 July 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				22 December 2003
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, 1st Bn, 81st AR Regiment, Fort Knox, KY	
f. Current Enlistment Date/Term:		27 August 2001, 4 years
g. Current Enlistment Service:		0 years, 8 months, 25 days
h. Total Service:				0 years, 8 months, 25 days
i. Time Lost:					571 days	
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-2
l. Military Occupational Specialty:		None
m. GT Score:					NIF
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 the applicant enlisted in the Regular Army on 27 August 2001, for a period of 4 years.  He was 18 years old at the time and was a high school graduate.  He was serving at Fort Knox, KY, when his discharge proceedings were initiated.  His record documents no acts of valor or significant achievement.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 571 days of time lost for being AWOL from 7 February 2002 until his apprehension on 31 August 2003.

2. On 11 September 2003, 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 12 September 2003, 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 2 December 2003, 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 22 December 2003, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 8 months and 25 days of creditable active military service and accrued 571 days of time lost due to being AWOL.  It also included 102 days of excess leave (030912-031222).  

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 the application.

POST-SERVICE ACTIVITY: 

The applicant states he is currently employed and attends college.

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 and a change to the reason for his discharge 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 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 the applicant received 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 discharge was inequitable because he was having severe family problems and decided to go home to help.  However, he 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.  The applicant had the opportunity to submit a statement explaining the reasons for going AWOL but the record shows he chose not to do so.

5.  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 military service.

6.  The applicant’s post-service accomplishments have been noted as outlined on the application.  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.  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.

7.  The applicant’s 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.  The applicant also contends the narrative reason for the discharge should be changed because of his family hardships.  However, the applicant was separated under the provisions of Chapter 10, AR 635-200 with an under other than honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph 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.  

9.  Therefore, the reason for discharge 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:  25 September 2013      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)		AR20130013070

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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