AR20140001773

IN THE CASE OF: Mr.

BOARD DATE: 15 December 2014

CASE NUMBER: AR20140001773
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review, 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 APPLICANTS REQUEST AND STATEMENT:

1. The applicant requests an upgrade of his discharge from under other than honorable conditions to uncharacterized and a change to the narrative reason for separation to include the reentry eligibility (RE) code.

2. The applicant states, in effect, he got sick and missed three days of classes during advanced individual training (AIT); he was informed if a Soldier missed three or more consecutive days, he would be dropped from class and this rule was not clearly stated at the beginning of AIT. He became depressed and angry; he was irrational and left his post and visited his girlfriend; he discovered he would be discharged and jailed; and fell deeper into a state of depression. His discharge caused him to be denied employment by the local police and fire departments. He was in initial entry training (IET) status and under provisions of AR 635-200, paragraph 10-8c; states when a characterization of service under other than honorable conditions is not warranted for a Soldier in entry-level status, service will be uncharacterized. He was young and irrational and has matured into a responsible, moral, and trustworthy man. He desires to serve his country and with this discharge he cannot.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 22 January 2014
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 23 February 2010
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: D Co, 369th Signal Battalion, Fort Gordon, GA
f. Current Enlistment Date/Term: 25 June 2008/OIADT, NIF
g. Current Enlistment Service: 1 year, 2 months, 9 days
h. Total Service: 1 year, 3 months, 11 days
i. Time Lost: 173 days
j. Previous Discharges: ARNG (080523-080624)/NA (Concurrent Service)
k. Highest Grade Achieved: E-2
l. Military Occupational Specialty: None
m. GT Score: 116
n. Education: GED Certificate
o. Overseas Service: None
p. Combat Service: None
q. Decorations/Awards: None
r. Administrative Separation Board: No
s. Performance Ratings: No
t. Counseling Statements: No
u. Prior Board Review: No

SUMMARY OF SERVICE:

The applicant enlisted in the Army National Guard on 23 May 2008, for a period of 8 years. He was 18 years old at the time of entry with a GED Certificate. He was ordered to initial active duty training (IADT) on 25 June 2008, the period of service was not in the file. His record does not contain any evidence of acts of valor or meritorious achievements. He was in AIT at Fort Gordon, GA when he went AWOL. He returned to duty at Fort Sill, OK where his discharge process was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence of record contains a DD Form 458, Charge Sheet which indicates on 23 December 2009, the applicant was charged with being AWOL (090630-091219).

2. On 23 December 2009, 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 veterans benefits. The applicant did not submit a statement on his own behalf. The unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge.

3. On 3 February 2010, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions.

4. The applicants available record does not contain any evidence of any actions under the Uniform Code of Military Justice (UCMJ) or any negative counseling statements.

5. The applicant was discharged from the Army on 23 February 2010, with a characterization of service of under other than honorable conditions under the provisions of Chapter 10, AR 635-200, by reason of in lieu of trial by court-martial, a Separation Program Designator code (SPD) of KFS and an RE code of 4.

6. The applicants record of service indicates 173 days of time lost for being AWOL from 30 June 2009 until 19 December 2009, when he surrendered to military authorities at Fort Sill, OK. Also, the applicant had 63 days of excess leave from 23 December 2009 through 23 February 2010.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. The record contains four DA Forms 4187 (Personnel Action), dated between 10 March 2009 and 30 July 2009, shows the applicant was present for duty, AWOL and dropped from the roll dates.

2. A DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated 30 July 2009, indicating the applicant was wanted as a deserter.

3. A DD Form 616 (Report of Return of Absentee) dated 19 December 2009, shows the applicant surrendered to the military authorities.

4. An NGB Form 22 dated 9 March 2009, indicating the applicant was discharged from the Army National Guard for being AWOL.

5. Active duty orders 8158002, dated 6 June 2008 shows the applicant was ordered to IADT.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application (six pages), a DD Form 214, USMEPCOM PCN 680-3ADP (Processee/Enlistee Record), Soldier Assessment Report (IET Soldiers, two pages), a personal data sheet, letter, Kennebec Valley Community College, student schedule, grade report, and unofficial transcripts.

POST-SERVICE ACTIVITY:

The applicant stated in his application he is completing his degree in Business Administration/ Accounting and contributing to his community.

REGULATORY AUTHORITY:

1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for a 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 individuals admission of guilt. Army policy states that although an honorable or general, under honorable conditions discharge is authorized, a discharge under other than honorable conditions 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. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldiers separation specifically allows such characterization.

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.

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of his characterization of service and a change to the narrative reason for separation to include the RE code was carefully considered. However, after examining the applicants record of service, the issue 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 to include the RE code.

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 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 uncharacterized discharge by the separation authority and it does not support an upgrade to an uncharacterized discharge at this late date.

4. The applicant requested a change to the narrative reason for separation to include the RE code. However, 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 got sick and missed three days of classes during AIT; he was informed if a Soldier missed three or more consecutive days, he would be dropped from class and this rule was not clearly stated at the beginning of AIT. 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 contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention the rule for missing classes was not clearly stated.

6. The applicant further contends he became depressed and angry; he was irrational and left his post and visited his girlfriend; he discovered he would be discharged and jailed; and fell deeper into a state of depression. The service record contains no evidence of a diagnosis of depression and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.

7. Further, he had many legitimate avenues through which to obtain assistance or relief and 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.

8. The applicant also contends his discharge caused him to be denied employment by the local police and fire departments. The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

9. The applicant additionally contends he was in an IET status and under provisions of AR 635-200, paragraph 10-8c; states when a characterization of service under other than honorable conditions is not warranted for a Soldier in entry-level status, service will be uncharacterized. Army Regulation 635-200 stipulates the service of a Soldier who has more than 180 days of continuous active duty at the time of the discharge from active duty will be characterized. The Army considers AWOL serious misconduct and a characterization of service of under other than honorable conditions is normally considered appropriate.

10. Moreover, the applicant contends he was young and irrational and has matured into a responsible, moral, and trustworthy man. The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

11. The applicant desires to serve his country and with this discharge he cannot. 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. There was no basis upon which to grant a change to the RE code. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment.

12. The records show the proper discharge and separation authority procedures were followed in this case.

13. Therefore, the reason for discharge and the characterization of service to include the reentry eligibility (RE) code being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 15 December 2014 Location: Washington, DC

Did the Applicant Testify, NA

Counsel: None

Witnesses/Observers: NA

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: 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) AR20140001773

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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