IN THE CASE OF:  	Mr. 

      BOARD DATE:  	5 May 2014

      CASE NUMBER:  	AR20130022308
___________________________________________________________________________

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 notwithstanding the examiner’s Discussion and Recommendation, the Board determined that the length and quality of the applicant’s service mitigated the discrediting entry in the service record.  In view of the foregoing, the Board determined that the characterization of service was too harsh and as a result it is now inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the Board determined the reason for discharge was proper and equitable and voted not to change it.  This action entails restoration of grade to SGT/E-5.   





      
      
      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 through his counsel that his under other than honorable conditions discharge be upgraded to general, under honorable conditions or honorable, change the narrative reason for separation to secretarial authority and the reentry eligibility (RE) code to 1.  

2.  The applicant states, in effect, his discharge was inequitable because it was based on an isolated incident in eight years of service with no other adverse action.  Characterizing his discharge as under other than honorable does not apply to his case because his average conduct and efficiency were good.  He received awards, decorations and letters of recommendation.  His promotions showed he was generally a good service member and a good person as well as a good citizen.  He was told he could get an upgrade to general after he got out of the military.  He is unable to find a job because of the stigma of not having an honorable discharge and he has several medical challenges that he received while serving his country.   

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			13 December 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				1 November 2000
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 Battery, 1st Battalion, 12th Field Artillery,
Fort Sill, OK
f. Current Enlistment Date/Term:		Reenlisted/20 July 1998, 3 years
g. Current Enlistment Service:		2 years, 3 months, 12 days
h. Total Service:				8 years, 4 months, 14 days
i. Time Lost:					None
j. Previous Discharges:			RA 920618-960115/HD
RA 960116-989719/HD
k. Highest Grade Achieved:			SGT/E-5
l. Military Occupational Specialty:		77F10, Petroleum Supply Specialist
m. GT Score:					114
n. Education:					14 years
o. Overseas Service:				Korea, (990404-000403)
p. Combat Service:				None
q. Decorations/Awards:			ARCOM, AAM, GCMDL-2, NDSM, ASR,
OSR (2), 
r. Administrative Separation Board: 		NA
s. Performance Ratings:			Yes
t. Counseling Statements:			None
u. Prior Board Review:				Records Review/20 August 2003 
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 18 June 1992, reenlisted 16 January 1996, and again on 20 July 1998, for a period of 3 years.  He was 31 years old at the time of entry and completed 14 years of education prior to entry in the Army.  He served two tours of duty in Korea and one tour was during the period of service under review.  He earned an ARCOM, AAM, and two GCMDLs and completed 2 years, 3 months, and 12 days of active duty service during the period of service under review and had a total of 8 years, 4 months and 14 days of active duty service.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 30 August 2000, court-martial charges was preferred against the applicant in that he did with intent to deceive, signed an official record DD Form 1351-2 (i.e., Travel Voucher), which was false (000424); and signed an official record DA Form 5960 (i.e., Authorization to Start, Stop, of Change Basic Allowance for Housing), which record was false (000424), and on or about (960223-000731), stole lawful currency of a value of about $19,483.18, the property of the US Army.  

2.  On 26 September 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.

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 26 October 2000, 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.  

5.  On 1 November 2000, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed a total of 8 years, 4 months, and 14 days of creditable active military service.  


EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  NCOER covering the period of July 1998 to November 1998.  The applicant was rated as among the best and received successful/superior from the senior rater.

2.  NCOER covering the period of November 1998 to April 1999.  The applicant was rated as fully capable and received successful/superior from the senior rater.

3.  NCOER covering the period of May 1999 to April 2000.  The applicant was rated as among the best and received successful/superior from the senior rater.

4.  NCOER covering the period of May 2000 to October 2000.  The applicant was rated as marginal and received poor/poor from the senior rater.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 dated 29 October 2013, self authored statement dated 29 October 2013, character reference letter from applicant’s Pastor, dated 7 April 2014, letter from applicant’s Nephrologists, MD dated 9 April 2014, and counsel letter dated 17 April 2014 .

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.

ANALYST’S DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  However, after examining the applicant’s record of service, the documents 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 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 his discharge was inequitable because it was based on an isolated incident in eight years of service with no other adverse action.  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.  However, 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 documented under Article 107, and 121 of the Uniform Code of Military Justice. 

5.  Even though the applicant claims that his offenses were isolated, the applicant committed several discrediting offenses, which constituted a departure from the standards of conduct, expected of Soldiers in the Army.  Having examined all the circumstances, the applicant’s incidents of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline.  These incidents of misconduct clearly diminished the quality of the applicant’s service below that meriting a fully honorable discharge.  

6.  The applicant contends he was told he could get an upgrade to general after he got out of the military and he is unable to find a job because of the stigma of not having an honorable discharge.  The US Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge.  Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both, were improper or inequitable.  Further, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

7.  The applicant further contends he has several medical challenges that he received while serving his country.  The service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition.  Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication.  

8.  The applicant contends the narrative reason for the discharge and the reentry eligibility (RE) code should 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" and the reentry eligibility (RE) code is 4.  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, separation code, entered in block 26, and the reentry eligibility (RE) code entered in block 27 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 the characterization of service being both proper and equitable, recommend the Board deny relief.  

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 notwithstanding the examiner’s Discussion and Recommendation, the Board determined that the length and quality of the applicant’s service mitigated the discrediting entry in the service record.  In view of the foregoing, the Board determined that the characterization of service was too harsh and as a result it is now inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the Board determined the reason for discharge was proper and equitable and voted not to change it.  This action entails restoration of grade to SGT/E-5.   

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Personal Appearance     Date: 5 May 2014       Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel: Yes [Redacted]

Witnesses/Observers: Yes - Father

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted no additional documents.

2.  The applicant presented the additional contentions:

	a.	Change the narrative reason to ‘Secretarial Authority.’
	b.	Change the reentry eligibility code to 1.

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

Board Vote:
Character Change:  3	No Change:  2
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	General, Under Honorable conditions.
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		SGT/E-5
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)		AR20130022308



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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