IN THE CASE OF:  	Mr. 

      BOARD DATE:  	12 June 2014

      CASE NUMBER:  	AR20140006079
___________________________________________________________________________

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 characterization of service is now inequitable.  The Board found the overall length and quality of the applicant's service, including his combat service and testimony mitigated the discrediting entry in his service record.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable conditions.  The Board further determined the reason for discharge was both proper and equitable and voted not to change it.





      
      
      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 an upgrade of his general, under honorable conditions discharge to honorable and the RE code changed.  

2.  The applicant states, in effect, that he is requesting reinstatement and removal of the discharge from his AMHRR.  The Article 15 and court-martial proceedings were illegal and unjust. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			1 April 2014
b. Discharge Received:			General, Under Honorable Conditions	
c. Date of Discharge:				31 March 2011
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:				Bravo Company, 1st Battalion, 505th 								Parachute Infantry Regiment, 3d Brigade 							Combat Team, 82d Airborne Division, Fort 							Bragg, NC		
f. Current Enlistment Date/Term:		25 December 2008, NIF
g. Current Enlistment Service:		2 years, 3 months, 6 days
h. Total Service:				5 years, 9 months, 15 days
i. Time Lost:					None
j. Previous Discharges:			RA (050616-081224)										(Concurrent Service)
k. Highest Grade Achieved:			E-6
l. Military Occupational Specialty:		11B3V, Infantryman
m. GT Score:					120
n. Education:					HS Graduate
o. Overseas Service:				Alaska and SWA x 2
p. Combat Service:				Iraq (060116-061130 and 080920-090829)
q. Decorations/Awards:			ARCOM-2, AAM, NDSM, ICM-w/CS-3 								GWOTSM, NPDR, ASR, OSR-3, CIB, EIB 							VUA
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			Yes
u. Prior Board Review:				No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 16 June 2005, for a period of 5 years and 19 weeks.  He was 17 years old and a high school graduate.  He reenlisted on 25 December 2008 for an unknown period.  He was serving at Fort Bragg, NC when his discharge was initiated.  He was awarded an ARCOM, two AAMs, CIB, EIB, and serve two combat tours in Iraq.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 22 February 2011, court-martial charges were preferred against the applicant for the following offenses:

Violation of the UCMJ, Article 91

	Specification 1:  Was disrespectful in language and deportment toward First Sergeant M, by raising his voice several times and by displaying a lack of respect with his body language, to wit: failing to stay at the position of parade rest (101202).

	Specification 2:  Was disrespectful in language toward Staff Sergeant C, by saying “you should tell him yourself and you don’t intimidate me, I don’t care if you are a platoon sergeant you are letting them walk all over our Soldiers and if that’s what’s gonna happen you could have my stripes,” or words to that effect (101202).  

2.  On 24 February 2011, 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 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 did not provide a statement on his behalf.  

4.  On 10 March 2011, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued a general, under honorable conditions discharge.    

5.  On 11 March 2011, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 5 years, 9 months and 15 days of creditable active military service and accrued no lost time.  



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Two Service School Academic Reports, dated 25 November 20009 (Warrior Leader Course), and 12 March 2010 (Advanced Leader Course).  

2.  GOMOR, 10 November 2010, for driving while impaired and crashing his motorcycle (100829).  

3.  CID report, dated 29 November 2010, referencing adultery.

4.  A FG Article 15, dated 30 November 2010, for being disrespectful in language and deportment toward First Sergeant M, by raising his voice several times and by displaying a lack of respect with his body language, to wit: failing to stay at the position of parade rest (101202) and being disrespectful in language toward SSG C, by saying “you should tell him yourself and you don’t intimidate me, I don’t care if you are a platoon sergeant you are letting them walk all over our Soldiers and if that’s what’s gonna happen you could have my stripes,” or words to that effect (101202).  The applicant demanded a trial by court-martial.  

5.  Four sworn statements dated 19 November 2010, 2 December 2010, and 2 June 2011 for adultery and disrespect.

6.  Two counseling statements and two sworn statements, dated 2 December 2010, for disrespect to a SSG and a 1SG.  

7.  DD Form 458, Charge Sheet, preferred charges, dated 22 February 2011. 

8.  Several email correspondences in reference to the communication which led to the disrespect allegations.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 293, DD Form 214, self-authored statement, Enlisted Record Brief, letter from a Specialist G, three character reference statements, two NCOERs, sworn statement, jump log, court martial charge transmittal form, fire fighting certificate, introduction to hazardous materials certificate,  operations at hazardous materials incidents certificate, notification of summary court-martial, and two counseling statements. 

POST-SERVICE ACTIVITY: 

None listed by the applicant. 

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), in effect at the time,  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, in effect at the time, shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 3.

ANALYST’S DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his discharge characterization and a change to the reason for the discharge was carefully considered.  

2.  The evidence of record confirms the applicant was charged with the commission of several offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge 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 applicant contends that the Article 15 and court-martial proceedings were illegal and unjust.  However, 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 his Article 15 or court-martial proceedings were illegal and unjust.  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.   

4.  The applicant contends he is requesting reinstatement and removal of the discharge from his AMHRR.  The applicant’s contentions are noted; however, the requested change does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization. 

5.  The applicant contends that he had good service and he provided two NCOERs, a copy of a jump log, and character reference letters to support his contentions.  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.  

6.   The applicant requested a change to his RE code.  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. 

7.  Therefore, the reason for discharge and 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 characterization of service is now inequitable.  The Board found the overall length and quality of the applicant's service, including his combat service and testimony mitigated the discrediting entry in his service record.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable conditions.  The Board further determined the reason for discharge was both proper and equitable and voted not to change it.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

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

Did the Applicant Testify?  Yes

Counsel:  None

Witnesses/Observers:  No





DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE

1.  The applicant submitted the following additional documents:

	a.  Award of NCOPD (2) award – 3 pages
	b.  Order for Meritorious Unit Citation award – 4 pages
	c.  Additional Character support letters – 5 pages
	d.  Newspaper article – Year of the NCO reference applicant – 2 pages
	e.  Army certificate of training senior gunner training course – 1 page

2.  The applicant presented the additional contentions:

	a.  Request reentry eligibility code change to 1.

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:  4	No Change:  1
Reason Change:	2	No Change:  3
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	Honorable
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)		AR20140006079



Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1