AR20140002976

IN THE CASE OF: Mr.

BOARD DATE: 30 January 2015

CASE NUMBER: AR20140002976
___________________________________________________________________________

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 to upgrade the characterization of his service from under other than honorable to general, under honorable conditions.

2. The applicant states, in pertinent part and in effect, he had marital issues and tried to save his marriage. His wife having relationship with other men, to include drinking and drug issues, made allegations of abuse in the relationship. Instead of going through a long embarrassing hearing, he opted to be discharged from the Army. Since his discharge, he obtained three associates degrees in applied sciences in EMS, general education, and general occupational technology, including obtaining his EMT-paramedic certification and working ambulance services for many State and Local government agencies. He has also obtained an instructor certification in basic life support and advanced life support and pediatric advanced life support. He teaches for a private company and two local colleges. He has recently remarried following a divorced in 2006. He purchased a home and has been a pillar of the community with no blemishes on his record.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 10 February 2014
b. Discharge Received: Under Other Than Honorable Conditions
c. Date of Discharge: 19 August 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: C Co, 782nd Main Support Bn, DISCOM, 82nd
Airborne Division, Fort Bragg, NC
f. Current Enlistment Date/Term: 15 January 2002, 6 years
g. Current Enlistment Service: 3 years, 7 months, 5 days
h. Total Service: 11 years, 1 month, 19 days
i. Time Lost: None
j. Previous Discharges: DEP (940701-950614) / NA
k. Highest Grade Achieved: E-5
l. Military Occupational Specialty: 91W2P, Health Care Specialist
m. GT Score: NIF
n. Education: HS Graduate
o. Overseas Service: SWA
p. Combat Service: Iraq (030701-040401)
q. Decorations/Awards: ARCOM-2; AAM-4; AGCM-3; NDSM; ICM;
GWOTSM; NPDR; ASR; OSR; EFMB
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 14 June 1995, and reenlisted twice thereafter. The latter reenlistment was on 15 January 2002, for a period of 6 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) 91W2P, Health Care Specialist. He served in Iraq. He earned two ARCOM and 4 AAM awards. He completed 11 years, 1 month, and 19 days of active duty and reserve service.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 7July 2005, the applicant was charged with the following offenses:

a. Charge I, violation of Article 90, UCMJ, for disobeying a commissioned officer (050425 and 050706);
b. Charge II, violation of Article 128, UCMJ, for assaulting Ms. D (030701 and 050417);
c. Charge II, violation of Article 134, UCMJ, two specifications of communicating a threat x2 (041231, 050417, 050401 and 050417)

2. On 1 August 2005, 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 submitted a statement on his own behalf. The unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge.

3. On 9 August 2005, the GCMCA approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions. The applicant was reduced to the lowest enlisted rank.

4. The applicant was discharged from the Army on 19 August 2005, with a characterization of service of under other than honorable conditions.

5. The applicants record of service does not show any record of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Charge Sheet described at the preceding paragraph 1.

2. Article 15, dated 24 March 2005, for disobeying a commissioned officer (050319 and 050321). The punishment consisted 14 days of extra duty and restriction, (CG).

3. Five negative counseling statements, dated between 29 October 2004 and 17 June 2005, for precautionary measures being imposed following allegations of violating the commanders no contact order and a restraining order issued by a county court; violating the commanders no contact order; making calls to his wifes residence from a battalion FTX; limitations imposed by a mental health division; being charged with domestic violence, simple assault, and assault; and spouse obtaining a divorce and her fears of repercussions.

4. A Serious Incident Report, dated 17 April 2005, reported the applicant being involved in a domestic violence.

5. Two MP Reports, dated 12 April 2005 and 17 April 2005, indicate the applicant was the subject of an investigation for assault, domestic disturbance and domestic disturbance, spousal abuse, and simple assault, respectively.

6. Four NCOERs rendered during the period of service under current review:

a. A Change of Rater report covering the period of October 2003 to August 2004. The applicant was rated as Among the Best and received 1/1 from the senior rater.
b. An Annual report covering the period of October 2002 to September 2003. The applicant was rated as Among the Best and received 1/1 from the senior rater.
c. A Change of Rater report covering the period of April 2002 to September2002. The applicant was rated as Fully Capable and received 3/3 from the senior rater.
d. An Annual report covering the period of April 2001 to March 2002. The applicant was rated as Among the Best and received 2/2 from the senior rater.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none.

POST-SERVICE ACTIVITY:

The applicant states, in effect, since his discharge, he obtained three associates degrees, including obtaining his EMT-paramedic certification and working ambulance services for many State and Local government agencies. He has also obtained an instructor certification in basic life support and advanced life support and pediatric advanced life support. He teaches for a private company and two local colleges. He has recently remarried following a divorced in 2006. He purchased a home and has been a pillar of the community with no blemishes on his record.

REGULATORY AUTHORITY:

1. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter10 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.

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of his characterization and a change to the reentry code was carefully considered. However, after examining the applicants record of service, and the issues 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. Although his record documents acts of significant achievement or valor, it 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 that he was having family issues that affected his behavior and ultimately led him to request to be discharged in lieu of trial by a court-martial. However, 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.

5. The applicants post-service accomplishments have been noted as outlined on the application. However, in review of the applicants entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted. Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities, or obtaining VA benefits.

6. 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: Records Review Date: 30 January 2015 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) AR20140002976

Page 6 of 6 pages

ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

1