IN THE CASE OF:  	

      BOARD DATE:  	27 April 2015

      CASE NUMBER:  	AR20140016195
___________________________________________________________________________

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 analyst’s Discussion and Recommendation which follows, the circumstances surrounding the discharge (i.e., warrants for the applicant’s arrest was issued while he was in OSUT), and his testimony, mitigated the discrediting entries in the service record.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the reason for discharge was both 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 an upgrade of his discharge from under other than honorable conditions to general, under honorable conditions, or honorable, and a change to the narrative reason for separation.

2.  The applicant states, in effect, he was sent to MEPS and shipped to basic training with civil charges pending against him.  He went AWOL to try and clear the charges pending against him.  He was injured during one station unit training (OSUT), and did not get correctly diagnosed until he came home.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			8 September 2014
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				17 December 2001
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, Chapter 10 								KFS, RE-4
e. Unit of assignment:				C Co, AG Repl Det, Fort Benning, GA
f. Current Enlistment Date/Term:		3 January 2000, 3 years
g. Current Enlistment Service:		1 year, 6 months, 26 days
h. Total Service:				1 year, 6 months, 26 days
i. Time Lost:					139 days
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-2`
l. Military Occupational Specialty:		None
m. GT Score:					123
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			None
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			No
u. Prior Board Review:				Yes
SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 3 January 2000, for a period of 3 years.  He was 17 years old at the time of entry and a high school graduate.  His record does not contain any evidence of acts of valor or meritorious achievements.  He was in initial entry training at Fort Benning, Georgia, when his discharge was initiated.


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record contains a DD Form 458, Charge Sheet which indicates on           31 October 2000, the applicant was charged with being AWOL x2 (000531-000824 and 00830-001024).

2.  On 31 October 2000, 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 recommended approval of an under other than honorable conditions discharge.

3.  On 29 November 2001, the separation authority approved the Chapter 10 request and directed the applicant's discharge with a characterization of service of under other than honorable conditions discharge.  The applicant was reduced to the lowest enlisted rank. 

4.  The applicant was discharged from the Army on 17 December 2001, with a characterization of service of under other than honorable conditions discharge. 

5.  The applicant's record of service indicates he had 139 days of time lost for being AWOL two times; from 31 May 2000 until 22 August 2000 for 83 days, mode of return unknown, and from          29 August 2000 until 24 October 2000 for 56 days, surrendered to military authorities.  Also, the applicant had 412 days of excess leave from 1 November 2000 until 17 December 2001.

6.  The applicant’s service record did not contain any evidence of any actions under the Uniform Code of Military Justice (UCMJ), or negative counseling statements.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains multiple DA Forms 4187 (Personnel Action) dated between 31 May 2000 and 31 August 2000, showing the applicant is absent without leave, returning to duty, going AWOL, and dropped from the rolls.

2.  A DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated 23 August 2000, indicating the applicant was wanted as a deserter.

3.  A DD Form 616 (Report of Return of Absentee) dated 26 October 2000, shows the applicant surrendered to military authorities.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, medical documents pertaining to a hip strain (15 pages), two copies of his Army Physical Fitness Test Scorecard, Army Military Human Resource Records documents (12 pages), Kershaw County, State of South Carolina Court Documents (two pages), dated 31 July 2002, and a DD Form 214.

POST-SERVICE ACTIVITY:

The applicant did not provide any information with his 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 a SPD Code of "KFS" will be assigned a RE Code of 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his characterization and a change to the narrative reason for separation 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 or a change to the narrative reason for separation.

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 requested a change to the narrative reason for separation.  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, for in lieu of trial by court-martial.  The regulation further stipulates that no deviation is authorized.

5.  The applicant contends he was sent to MEPS and shipped to basic training with civil charges pending against him.  The applicant submitted court documents which indicated he was pending two different charges.  He was arrested for breach of peace on 28 August 1999 and he was found not guilty on 30 September 1999.  The first charge of resisting arrest on                27 August 1999 was still pending and he enlisted in the Army and an arrest warrant was issued.

6.  The applicant further contends he went AWOL to try and clear the charges pending against him.  He had many legitimate avenues through which to obtain assistance or relief, 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.  Further, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The character of the applicant’s discharge is commensurate with his overall service record.  

8.  The applicant also contends he was injured during OSUT and did not get correctly diagnosed until he came home.  The record indicates the applicant was receiving medical attention.  If the applicant did not feel the medical attention he was receiving was adequate he could have presented to the medical treatment facility for further treatment.

9.  Additionally, the applicant bears the burden of presenting substantial and credible evidence to support this contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention his medical diagnosis was incorrect. 

10.  Therefore, the reason and characterization of service being both proper and equitable, the analyst recommends the Board deny relief.
SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance    Date: 27 April 2015    Location: Washington, DC

Did the Applicant Testify:  Yes

Counsel:  None

Witnesses/Observers:  Yes

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

     a.  Job performance (3 pages)

     b.  Boss recommendation (1 page)

     c.  Police reports (2 pages)

     d.  Computer printout (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:  	No Change
Change RE Code to:  			No Change
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)		AR20140016195



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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