IN THE CASE OF:  	Mr. 

      BOARD DATE:  	11 March 2014

      CASE NUMBER:  	AR20130015418
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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.  Counsel requests an upgrade of the applicant’s under other than honorable conditions discharge, a change to the narrative reason for discharge, and restoration of the applicant’s rank.

2.  Counsel states, in effect, there is new substantial evidence with the Army’s policy change regarding Post Traumatic Stress Disorder (PTSD) proving mitigating factors regarding the applicant’s discharge.  He states in 2012, the Army issued a new PTSD policy to broaden screening and diagnostic criteria for the unique military context of Soldiers not reporting or seeking treatment.  He states the applicant’s behavior which led to his discharge, is detailed by this new documentary evidence.  He contends the applicant’s discharge is a result of PTSD symptoms experienced prior to his discharge.  He further contends the applicant’s discharge is now inequitable based on the applicant’s exemplary service, including his combat service.
He contends the applicant did not have a mental health screening conducted to determine if there were symptoms of PTSD and if those symptoms contributed to his misconduct.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			19 August 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				7 October 2006
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:				HHC, 1st Battalion, 1st Special Forces Group
(Airborne), Okinawa, Japan
f. Current Enlistment Date/Term:		24 December 2003/4 years
g. Current Enlistment Service:		2 years, 9 months, 14 days
h. Total Service:				6 years, 1 month, 3 days
i. Time Lost:					5 days
j. Previous Discharges:			DEP, 000711-000904, NA
RA, 000905-031223, HD
k. Highest Grade Achieved:			E-6
l. Military Occupational Specialty:		96B1S, Intelligence Analyst
m. GT Score:					104
n. Education:					HS Graduate
o. Overseas Service:				Japan, SWA
p. Combat Service:				Afghanistan, (030103-030828)
q. Decorations/Awards:			ARCOM-2, AAM-2, AGCM, NDSM, ACM,
GWOTEM, GWOTSM, NPDR, ASR, OSR
r. Administrative Separation Board: 		NA
s. Performance Ratings:			Yes
t. Counseling Statements:			Yes
u. Prior Board Review:				Yes
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 5 September 2000 for a period of 4 years and reenlisted on 24 December 2003 for a period of 4 years.  He was 21 years old at the time of reenlistment and a high school graduate.  He served in Japan and Afghanistan.  He earned two ARCOMs, two AAMs, and completed 6 years, 1 month, 3 days of active duty service.  When his discharge proceedings were initiated, he was serving in Okinawa, Japan.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  Counsel provided evidence of record that contains a DD Form 458 (Charge Sheet), which indicates on 10 August 2006, the applicant was charged with the following offenses:

     a.  absent without leave (AWOL) on 060619-060624.

     b.  disobeying a lawful order x 4 (060721, 060723 x 060611).

     c.  physical control of a vehicle while impaired by fatigue, some amount of alcohol, and with loud music playing on a stereo system, in a reckless manner by fleeing the scene of an accident.

     d.  wrongful use of cocaine, methamphetamines, and amphetamines.

     e.  wrongful influence of PFC R, to flee the scene of a traffic accident.

     f.  wrongfully and recklessly engaged in conduct of operating a motor vehicle to flee the scene of an accident while carrying two passengers SGT J and PFC R, during early morning hours while impaired by fatigue, some amount of alcohol, loud music playing on a stereo system, and conduct likely to cause death or grievous bodily harm.

2.  Counsel provided evidence that indicates on 17 August 2006, 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 did not submit a statement on his own behalf.  The unit commander and intermediate commander recommended approval of an under other than honorable conditions discharge.  

3.  Counsel provided evidence that indicates on 18 September 2006, 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.  The applicant was discharged from the Army on 7 October 2006, with a characterization of service of under other than honorable conditions.

5.  The applicant’s record of service indicates the applicant had five days of time lost for the period of 19 June 2006 to 24 June 2006.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Two DA Forms 1059 (Service School Academic Evaluation Reports), dated 9 March 2005 and 13 June 2006.  The applicant completed the Primary Leadership Development Course (PLDC) by achieving course standards.  However, the applicant was administratively relieved from the Intelligence Analyst Basic NCO Course (BNCOC) for failing to achieve course standards by failing to meet standards of conduct and demonstrating poor leadership skills by violating a general officer directive and Fort Huachuca policy.

2.  Two NCOERs covering the period of May 2004 through May 2005 and May 2005 through April 2006.  He was rated “Among the Best” by his raters and received a “1/1” for “Overall Performance/Overall Potential” by his senior raters.  

EVIDENCE SUBMITTED BY THE APPLICANT:

Counsel provided in support of the application a DD Form 293, dated 5 August 2013, with all listed enclosures, including a DA Form 4856 (Developmental Counseling Form), dated 26 June 2006, for being administratively relieved from BNCOC, and a incomplete DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 29 June 2006.

POST-SERVICE ACTIVITY: 

Counsel did not provide any in support of 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.  Counsel’s request for an upgrade of the applicant’s characterization, a change to the narrative reason for discharge, and restoration of the applicant’s rank 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.  Although the applicant’s record was void of the specific facts and circumstances concerning the events which led to his discharge from the Army; however, counsel provided evidence concerning the facts and circumstances surrounding the applicant’s discharge, and the record contains a properly constituted DD Form, which was authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge.  Barring evidence to the contrary, it appears 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 was charged with the commission of offenses 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.  

4.  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.  

5.  Counsel contends the VA has granted the applicant a service-connected disability for PTSD and referenced the Army’s new policy on screening and diagnosing PTSD.  However, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted.  Counsel has not provided any evidence that the applicant should not be held responsible for his misconduct.  Further, there are many Soldiers with the same condition that completed their service successfully.
6.  Counsel contends the applicant had exemplary service which included combat duty.  However, the applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  This service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct.

7.  Counsel requests a change to the narrative reason for the discharge.  However, 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.  The regulation further stipulates that no deviation is authorized.  Further, 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, which cannot be waived.

8.  Counsel requests the applicant’s rank be restored.  The Army Discharge Review Board is not empowered to restore former service member's grade, rate or rank.  The Board may only change the characterization or reason for discharge.  If an applicant believes there is an error or injustice in his discharge, he may make an application to the Army Board for Correction of Military Records, using DD Form 149, which can be obtained online or from a Veterans Service Organization.  

9.  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:  Personal Appearance     Date:  11 March 2014     Location:  Washington, DC

Did the Applicant Testify?  Yes

Counsel:   yes [redacted]

Witnesses/Observers:  NA 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted no additional documents or contentions.

2.  In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing.

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)		AR20130015418



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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