IN THE CASE OF:	

      BOARD DATE:	18 May 2015

      CASE NUMBER:	AR20150002431
___________________________________________________________________________

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 was both 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 to upgrade the characterization of his service from general, under honorable conditions to fully honorable.  

2.  The applicant states, in effect, he case was never full justified.  He was forced out by his chain of command.  His platoon sergeant was under an investigation causing bad judgment on him.  His wife miscarried and he lost a close family member.  His unit never offered him any rehabilitation.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	9 February 2015
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	26 April 2013
	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:	HHT, 1st Sqdn, 33rd Cavalry Regiment (Rear) 
			(Provisional), 3rd BCT (R) (P), 101st Airborne 
			Division (Air Assault) (R) (P), Fort Campbell, KY
	f.	Current Enlistment Date/Term:	19 July 2011, 4 years
	g.	Current Enlistment Service:	1 year, 8 months, 18 days
	h.	Total Service:	1 year, 8 months, 18 days
	i.	Time Lost:	20 days
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-2
	l.	Military Occupational Specialty:	25U10, Signal Support System Specialist
	m.	GT Score:	91
	n.	Education:	HS Graduate
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	NDSM; GWOTSM; ASR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 19 July 2011, for a period of 4 years.  He was 18 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 25U10, Signal Support System Specialist.  His record documents no acts of valor or significant achievement.  He completed 1 year, 8 months, and 18 days of active duty service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 14 days of time lost for being AWOL from 8 November 2012 through 19 November 2012, upon returning to his unit on 20 November 2012, and from 4 March 2013 to 5 March 2013, until he was apprehended by civil authorities on 6 March 2013; wrongfully using cocaine on three separate occasions (121204-121214, 121201-121210, and 120908-120918); and wrongfully using marijuana (120819-120918).

2.  On 11 March 2013, two court-martial charges with its specification were 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 and violating Article 112a of the Uniform Code of Military Justice for wrongfully using cocaine and marijuana, each on two separate occasions.  On 12 March 2013, 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 (UOTHC) 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 indicate whether he was submitting a statement in his own behalf.  

4.  The separation authority’s decision memorandum approving the applicant's request for discharge and directing that he be reduced to the lowest enlisted grade and issued a UOTHC Discharge Certificate is not available.  

5.  Pursuant to the separation authority approving the request for discharge in lieu of trial by court-martial, on 26 April 2013, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 1 year, 8 months and 18 days of creditable active military service and accrued 20 days of time lost due to being AWOL and being in a pretrial confinement from 6 March 2013 through 11 March 2013. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There are no negative counseling statements or any actions under the Uniform Code of Military Justice.



EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

POST-SERVICE ACTIVITY: 

The applicant provided none.  

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 reentry code was carefully considered.  However, after examining the applicant’s record of service, the issue and document 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 the discharge was unjust because he was forced out by his chain of command; his platoon sergeant was under an investigation causing bad judgment on him; his wife miscarried; he lost a close family member; and his unit never offered him any rehabilitation.  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 he may have been unjustly discriminated.  In fact, the applicant’s two charges with its specifications of violating Articles 86 and 112a, of the UCMJ justified serious incidents of misconduct on numerous occasions.  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.  

5.  Therefore, the reason and characterization of service being both proper and equitable, recommend the Board deny relief.



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance      Date:  18 May 2015      Location:  Washington, DC

Did the Applicant Testify?  Yes 

Counsel:  None

Witnesses/Observers:  None 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  Neproxen side effects (15 pages)
	
      b.  AR 135-5 (2 pages)
	
      c.  AR 27-3 (5 pages)
	
      d.  Platoon sergeant mug shot (1 page)
	
      e.  Staff Duty logs (15 pages)

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:		No Change
Change RE Code to:			No Change
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)		AR20150002431

Page 2 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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