IN THE CASE OF:	Mr. 

      BOARD DATE:	28 March 2014

      CASE NUMBER:	AR20130013340
___________________________________________________________________________

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 to change the characterization of his service from under other than honorable conditions to uncharacterized, and to change the narrative reason and reentry code of his discharge.

2.  The applicant states, in effect, he is asking to upgrade his RE code to one that will allow him to reenlist and continue his service with the United States Army.  He adds under the suggestion of his peers and one of his sergeants, he went AWOL from AIT, in attempt to reclassify to a different MOS that would better set him on a path to succeed in being the very best helicopter pilot/mechanic/engineer.  It was the initial reason for his enlistment.  He has never been in trouble or had any Article 15 action or any other disciplinary actions during his military service.  He does not fully understand the reentry code consequences to his actions as he was told he would have no problem in gaining a reassignment.  However, he accepts the consequences and asks for the chance to further his career with the Army and to continue the tradition of his family and forefathers with military service. He is a patriot.  He stands ready to fight for the liberties and freedoms of the United States of America. 

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	16 July 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	30 January 2008
	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:	Co C, 447th Sig Bn, 15th Sig Bde, Fort Gordon, GA
	f.	Current Enlistment Date/Term:	12 June 2007, 4 years
	g.	Current Enlistment Service:	0 years, 4 months, 28 days
	h.	Total Service:	0 years, 4 months, 28 days
	i.	Time Lost:	82 days
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-1
	l.	Military Occupational Specialty:	None
	m.	GT Score:	110
	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:	NIF
	u.	Prior Board Review:	No



SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 12 June 2007, for a period of 4 years.  He was 21 years old at the time of entry and had a high school equivalency (GED).  His record documents no acts of valor or significant achievement.  He was attending the advanced individual training at Fort Gordon, GA, when he went AWOL and was discharged from Fort Knox, KY, where he surrendered to military authorities.  He completed 4 months and 28 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 82 days of time lost for being AWOL from 14 September 2007, until he surrendered to military authorities on 5 December 2007.

2.  On 10 December 2007, 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 10 December 2007, 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.  Subsequently, the unit commander recommended approving his request for discharge in lieu of trial by court-martial with an under other than honorable conditions discharge.

4.  On 11 January 2008, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade if he was serving in a pay grade above E-1, and issued a UOTHC Discharge Certificate.  

5.  On 30 January 2008, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 4 months and 28 days of creditable active military service and accrued 82 days of time lost due to being AWOL.  



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  DD Form 458, Charge Sheet, dated 10 December 2007, indicates the applicant was charged with being AWOL (070914-071205) that was preferred on 10 December 2007.

2.  DD Form 616, Report of Return of Absentee, dated 5 December 2007, indicates the applicant surrendered to military authorities at Fort Knox, KY, on 5 December 2007. 

3.  DA Form 4187, Personnel Action, dated 7 December 2007, indicates the applicant’s status from DFR to Attached/PDY, effective 1038 hours, 5 December 2007.

4.  DA Form 4187, Personnel Action, dated 14 October 2007, indicates the applicant’s status from AWOL to DFR, effective 0001 hours, 14 October 2007.

5.  DA Form 4187, Personnel Action, dated 17 September 2007, indicates the applicant’s status from PDY to AWOL, effective 2200 hours, 14 September 2007.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided DD Form 214 for service under current review; letter of recommendation, dated 10 June 2012, rendered by SGT H; DA Form 705, APFT Scorecard, with four separate APFT event entries from June 2007 through August 2007; and a certificate of completion of basic training, dated 24 August 2007.

POST-SERVICE ACTIVITY: 

The applicant provided none.  

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 changes to the narrative reason and reentry code 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 or changes to the narrative reason and reentry code for his 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 and it does not support an upgrade to an honorable or a general discharge at this late date.  

4.  The applicant contends that it was at the suggestion of his peers and one of his sergeants that he went AWOL from AIT, in attempt to reclassify to a different MOS.  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.  Moreover, 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 this issue.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.

5.   The applicant desires to rejoin the military service.  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.

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 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.  

7.  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:  28 March 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)		AR20130013340

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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