IN THE CASE OF: BOARD DATE: 5 May 2014 CASE NUMBER: AR20140000104 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review, hearing her 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 an upgrade of her discharge from under other than honorable conditions to honorable and a change to the narrative reason for separation to Secretarial Authority. 2. The applicant states through counsel, in effect, she went AWOL because she was raped and developed mental health problems to include Post Traumatic Stress Disorder (PTSD) as a result of the rape. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 19 December 2013 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 29 November 2006 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, 232nd Medical Battalion, Fort Sam Houston TX f. Current Enlistment Date/Term: 28 December 2004, 4 years g. Current Enlistment Service: 7 months, 19 days h. Total Service: 7 months, 19 days i. Time Lost: 470 days j. Previous Discharges: None k. Highest Grade Achieved: E-2 l. Military Occupational Specialty: None m. GT Score: 118 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 28 December 2004, for a period of 4 years. She was 23 years old at the time of entry and a HS Graduate. Her record does not show any acts of valor or significant achievements. She was in initial entry training at Fort Sam Houston, TX, when she went AWOL. She surrendered to military control at Fort Hamilton, NY and was transferred to Fort Knox, KY where her discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 26 October 2006, the applicant was charged with AWOL (050710-061023). 2. On 26 October 2006, 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 she understood she 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 her behalf. The unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge. 3. On 7 November 2006, the separation authority 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 29 November 2006, 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. 5. The applicant’s record of service does not contain any negative counseling statements or actions under the Uniform Code of Military Justice (UCMJ). 6. The applicant’s record of service indicates 470 days of time lost for being AWOL from 10 July 2005 through 22 October 2006; she surrendered on 23 October 2006. Also, she had 34 days of excess leave from 27 October 2006 until 29 November 2006. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. The record of evidence contains three DA Forms 4187 (Personnel Action), dated between 11 July 2005 and 25 October 2006, which indicated the applicant’s present for duty, AWOL, dropped from rolls and surrender dates. 2. A DD Form 616 (Report of Return of Absentee), dated 23 October 2006, which indicated the applicant surrendered to military authorities. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, DD Form 214, attorney’s brief (five pages), sworn statement (five pages), former spouse’s sworn statement (two pages), mother’s sworn statement (five pages), news article military times (two pages), Chapter 10 Discharge packet (14 pages), record of acute medical care, sick call slip, chronology medical care (12 pages), medical record supplemental data (two pages), Department of Veterans Affairs, Review PTSD Disability Benefits Questionnaire (six pages), marriage certificate, photocopy of Florida drivers license and social security card, applicant’s handwritten notice of name change, and Circuit Court, Eighth Judicial Circuit, final judgment of dissolution of marriage. POST-SERVICE ACTIVITY: The applicant did not provide any information with the application. 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 individual’s 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 Soldier’s 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 applicant’s request for an upgrade of her characterization of service and a change to the narrative reason for separation was carefully considered. However, after examining the applicant’s record of service, her military records, 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. Her 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. 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 she went AWOL because she was raped and developed mental health problems to include PTSD as a result of the rape. She had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that she ever sought such assistance before committing the misconduct which led to the separation action under review. 6. Further, the record of evidence does not demonstrate that she sought relief through her command or the numerous Army community services like the Chaplain, Army Community Counseling Center, and other medical resources available to all Soldiers. Likewise, she has provided no evidence that she should not be held responsible for her misconduct. 7. Furthermore, the independent document (Department of Veterans Affairs) was acknowledged, which diagnosed the applicant with PTSD and a bi-polar disorder. However, the record does not contain any evidence of an in-service diagnosis of PTSD or a bi-polar disorder as indicated in the independent documentation and the applicant did not submit any corroborating evidence to support the contention that the discharge was the result of any medical condition. 8. Moreover, the applicant indicated in her counsel’s brief and a sworn statement, as did her former spouse and mother in sworn statements that she was raped. Although the applicant stated through her counsel that she was a victim of rape during her military service, there is no evidence in her military records and the applicant has not provided sufficient evidence supporting this contention. Therefore, this argument is not sufficient to support her request for an upgrade of her discharge. 9. The records show the proper discharge and separation authority procedures were followed in this case. 10. Therefore, the reason for discharge and the 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: 5 May 2014 Location: Washington, DC Did the Applicant Testify: Yes Counsel: Yes Witnesses/Observers: None In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing. Board Vote: Character Change: 1 No Change: 4 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) AR20140000104 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1