IN THE CASE OF:  	Mr. 

      BOARD DATE:  	5 May 2014

      CASE NUMBER:  	AR20140002488
___________________________________________________________________________

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 which follows, the Board determined that the applicant's testimony was found to be credible and the circumstances surrounding his discharge (i.e., he went AWOL because of his sexual orientation) to include his combat 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 PV2/E-2.   




      
      
      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 upgrade to general, under honorable conditions, and the narrative reason for separation, the reentry eligibility (RE) code and the separation program designator (SPD) code changed.  

2.  The applicant states, in effect, while he was stationed in Iraq things took a turn for the worse.  He had a slip up that indicated to his platoon that he was gay and they all pounced on this and started asking him questions which of course he denied them.  From that point on he was severely hazed by his peers which he took for many months and it continued once he got back to the rear.  At first it did not bother him but over time it eventually got to him.  While he was off duty, he would go to gay clubs off base and thought nothing of it at the time because that was his personal life.  This was the turning point of where things went really wrong.  One night he was at a club and he upset this gentleman who was being rude toward his friends and the gentlemen called the military police and told them that he was hosting a gay sex party in the barracks and the story got back to his 1SG.  His 1SG brought him into the office and question him about it and he denied it because it was a lie.  The 1SG pulled the camera footage from the post gates and found that he left post for several hours and the 1SG called him into the office and caught him in a lie and he was issued an Article 15. 

3.  He did everything that was asked of him for about 15 days after that.  Then something in him snapped one day when he was being beaten up by one of his platoon members and that’s when he decided to go AWOL.  He turned himself in and met with the command sergeant major (CSM) and told him of his desire of wanting to leave the Army.  He did not tell him why he wanted to leave the Army because of the don’t ask, don’t tell policy.  However, he was handed orders to go back to Iraq which devastated him and he didn’t know what to think.  He couldn’t do another six months over there getting hazed for being who he was.  He did extra duty for five days and made the decision to go AWOL again. Upon his route there, he was stopped by a Kansas Highway patrolman for having his high beams on and of course when he ran his record, he had a warrant out for his arrest.  He pulled him out of the car at gun point and put him in handcuffs. He then took him to jail where he spent 13 days waiting for the CID to come and get him which they finally did. 

4.  They then brought him back to post and released him to the rear detachment as his platoon had already deployed to Iraq.  He spent roughly 4 months in rear detachment before he was brought before the commander and told he was being recommended for a court martial.  While he was in rear detachment he was very well behaved and always did what was asked and never got into trouble.  He showed up to formation daily because he enjoyed being in the Army again and his platoon was gone.  He was no longer being hazed and the people he was working with weren’t judging him because they had no knowledge of what had happened in his past.  At this time he then sought council at JAG. When he met with the lawyer he knew the conversation would be somewhat privileged so he told him everything that had happened to him over the past couple of years.  He explained to him he wanted a Chapter 15 discharge.  The JAG officer explained to him that the discharge he requested would be hard to do because it would take a very long time due to the fact they would have to bring back members of his platoon from Iraq to question them in regards to the incidents.  So he informed him, he really only had two options.  Go to court-martial and have a 50/50 chance of being found guilty and if he was found guilty he would face a dishonorable discharge or jail time.  He stated that the quickest way out was to request a Chapter 10 and hope the Post General approves it.  So he wanted the lesser of two evils, and took the Chapter 10. Within 72 hours he was no longer in the military.  To this day, he still wishes he would have gone with the Chapter 15.  The Chapter 10 is holding him back in pursuing his career as a law enforcement officer.  Part of him appealing the discharge, is so that he can join the National Guard and start giving back once again and prove to his country that he is not the person that his DD Form 214 shows he is.  This incident while he was in the Army was an isolated one and he feel he was pushed to do what he did because of how he was being treated.  He knows this is hard to prove because we have no testimony from the people that did it and even if we did have their testimony, who in their right mind would tell you.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			5 February 2014
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				25 May 2005
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:				ARHHT Non Deploy (WAY8AC), 
Fort Carson, CO
f. Current Enlistment Date/Term:		10 July 2003, 3 years
g. Current Enlistment Service:		1 year, 10 months, 16 days
h. Total Service:				1 year, 10 months, 16 days
i. Time Lost:					None
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		19K10, M1 Armor Crewman
m. GT Score:					100
n. Education:					HS Grad
o. Overseas Service:				Southwest Asia
p. Combat Service:				Kuwait/Iraq (040111-040523)
q. Decorations/Awards:			NDSM, GWOTEM, GWOTSM, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				Yes/Records Review/28 March 2007

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 10 July 2003, for a period of 3 years.  He was 18 years old at the time of entry and a high school graduate.  His record documents no acts of valor or significant achievements; however, he served a combat tour in Kuwait and Iraq.  He completed 1 year, 10 months, and 16 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  

2.  The DD Form 214 indicates that on 25 May 2005, the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  Further, the DD Form 214 shows a Separation Code of KFS i.e., in lieu of trial by court-martial) with a reentry eligibility (RE) code of 4.

3.  The applicant’s available record does not show any evidence of actions under the UCMJ or unauthorized absences or time lost; however, the applicant indicated in his self authored statement that he went AWOL on two occasions for a total of 28 days.  He was apprehended by the civilian authorities and placed in civil confinement for 13 days and was transferred to the military authorities.  Additionally, he also indicated that he was given an Article 15, for lying to a noncommissioned officer; his punishment consisted of forfeiture of a half months pay, reduction to E-2, and 15 days of extra duty.   

4.  On 25 May 2005, DA, Installation Management Agency, HQS, US Army Garrison, Fort Carson, CO, Orders Number 145-0011, discharged the applicant from the Army effective 25 May 2005.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Separation Order 145-0011, dated 25 May 2005.  

2.  DD Form 214 for the period of service under review dated 25 May 2005.

3.  Enlistment contract DD Form 4/3 dated 10 July 2003.  

EVIDENCE SUBMITTED BY THE APPLICANT:

1.  The applicant provided a DD Form 293 dated 29 January 2014, self authored statement dated 29 January 2014, five letters of recommendation, several certificates of completion with various dates, letter of appointment to Emergency Management Auxiliary Police Officer dated 19 August 2013, several licenses from various states, Associate of Appliance Science, Criminal Justice Degree from the University of Colorado, dated 10 May 2006, Transcripts from the University of Colorado issued May 10, 2006, Notice of Representation and Authorization from The Edmunds Law Firm dated 24 February 2014.

POST-SERVICE ACTIVITY: 

1.  The applicant states in his self authored statement that he is pursuing a career as a law enforcement officer.   

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 and a change to the narrative reason for separation was carefully considered.  However, after examining the applicant’s available military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge and a change to the narrative reason for separation.  


2.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), 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 applicant's contentions about him being gay and he was beaten up by one of his platoon members which was a contributing factor to him going AWOL were carefully considered.  However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service.  Moreover, there is a presumption of regularity in the conduct of governmental affairs.  This presumption is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted.  The applicant’s statements alone do not overcome the presumption of government regularity in this case and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge.  

4.  The applicant contends the reason for him appealing his discharge is so that he can join the National Guard.  If the applicant desires to enlist in the Army National Guard, he should continue to contact a local recruiter to determine his eligibility to enlist.  Recruiters can best advise a former service member as to the needs of the Army National Guard at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 

5.  Therefore, based on the available evidence and the presumption of government regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus 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 applicant's testimony was found to be credible and the circumstances surrounding his discharge (i.e., he went AWOL because of his sexual orientation) to include his combat 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 PV2/E-2.   

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:  None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  Town of Holbrook letter of appointment – 1 page
	b.  FBI check – 1 page
	c.  Letters of reference/recommendation – 5 pages
	d.  Photos of IDs – 1 page
	e.  Maine Criminal Justice letters – 2 pages
	f.  Firearms training certificates – 5 pages
	g.  FEMA training courses certificates – 4 pages
	h.  Holbroook, Mass certificate of completion – 1 page
	i.  Univ of Colorado – Associates certificate – 1 page
	j.  Transcripts – Univ of Colorado – 2 pages
	k. Edmunds Law Firm – letter of appointment – 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:  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:		PV2/E-2
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)		AR20140002488



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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