IN THE CASE OF:  	Mr. 

      BOARD DATE:  	12 March 2014

      CASE NUMBER:  	AR20130016668
___________________________________________________________________________

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 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.

2.  The applicant states, in effect, that he knows now that it was wrong and at the time did not understand the extremity of his actions.  He was young with nothing and no one to turn to, except for the drill sergeant that he became very close with.  He had learned that he was going to become a father and the drill sergeant was supporting him with decisions and such.  He was told to write a letter to Ms. P and that the drill sergeant would see that the orders got changed which never happened.  He was told to leave by the drill sergeant but he didn’t want to because he knew it was wrong to go AWOL.  He was made a world of promises by the drill sergeant that all turned out to be wrong and he suffered and still suffer to this day.  He never got his letter to Ms. P and the drill sergeant told him that he would never see his child born and being young and dumb didn’t help.  He was following orders, or what he thought was orders and didn’t have anyone or knew anyone else to tell this to.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			9 September 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				17 January 2002
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:				Battery A, 1st Battalion, 56TH Air Defense
Artillery Regiment, 6th Air Defense Artillery Brigade, Fort Bliss, TX
f. Current Enlistment Date/Term:		7 July 1999, 4 years
g. Current Enlistment Service:		1 year, 9 months, 4 days
h. Total Service:				1 year, 9 months, 4 days
i. Time Lost:					282 days, AWOL (000305-001211)
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-2
l. Military Occupational Specialty:		14E Patriot System Operator
m. GT Score:					NIF
n. Education:					HS Grad
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:				None
SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 7 July 1999, for a period of 4 years.  He was 20 years old and a high school graduate.  He was trained in military occupational specialty (MOS) 14E, Patriot System Operator.  His record documents no acts of valor or significant achievements.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 282 days of time lost for being AWOL from 5 March 2000 until his apprehension by civilian authorities on 11 December 2000.

2. On 21 December 2000, 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. 

3.  On 21 December 2000, 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.

4.  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.  

5.  On 13 December 2001, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued an under other than honorable conditions discharge certificate.  

6.  The applicant was placed on excess leave from 22 December 2000 until 17 January 2002, for a total of 392 days

7.  On 17 January 2002, the applicant was discharged accordingly under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial, with an under other than honorable conditions discharge, an SPD code KFS and a reentry eligibility (RE) code 3.  The DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 8 months and 29 days of active military service and accrued 282 days of time lost due to being AWOL.  The DD Form 214, block 12; net active service this period should be; 1 year, 9 months, 4 days. 

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 an online application dated 2 September 2013, and a copy of his social security card. 

POST-SERVICE ACTIVITY: 

The applicant did not provide any 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 his service and a change to the narrative reason for separation 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 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 that he was young with nothing and no one to turn to, except for the drill sergeant that he became very close with.  He had learned that he was going to become a father and the drill sergeant was supporting him with decisions and such.  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.  

5.  The applicant further contends that he was told to leave by the drill sergeant but he didn’t want to because he knew it was wrong to go AWOL.  He was made a world of promises by the drill sergeant that all turned out to be wrong and he suffered and still suffer to this day.  He was following orders, or what he thought was orders and didn’t have anyone or knew anyone else to tell this to.  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.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was told to leave by his drill sergeant and that he was order to go AWOL.  In fact, the applicant’s AWOL justifies a discharge in lieu of trial by court-martial.  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.  

6.  The applicant 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.  

7.  The applicant contends the narrative reason for his separation should be changed.  However, the applicant was separated under the provisions of Chapter 10, AR 635-200 with an under other than honorable conditons 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.

8.  Therefore, the characterization of service and the narrative reason for separation being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance     Date:  12 March 2014     Location:  Washington, DC

Did the Applicant Testify?  Yes

Counsel:  None

Witnesses/Observers:  Yes – Mother 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  Personal letter of reference – local sheriff – 1 page
	b.  Personal letter of reference – MG – 1 page

2.  The applicant presented no additional contentions.

In addition to the evidence in the record, the Board carefully considered the additional documents and 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)		AR20130016668

Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1