IN THE CASE OF: Mr. BOARD DATE: 25 August 2014 CASE NUMBER: AR20140008723 ___________________________________________________________________________ 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 did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. The applicant requests a change to the narrative reason for separation and the reentry eligibility (RE) code. 2. The applicant states, in effect, that at the time of his military discharge, he was suffering through a severe hardship with child care. The hardship caused him to go AWOL for twenty days. However, he maintained contact with his unit at Fort Dix, and used all avenues to get his childcare situation under control. He has documented paperwork showing his efforts although he did commit the offense. His AWOL was due to pressure from his family and not because he did not want to serve his unit or the military. He made it clear to his commander that a transfer to a closer active unit in New York City would have solved his situation. His request was denied and he didn’t have a choice but to take matters into his own hands. He is asking for a change to the narrative reason for separation and a change to the reentry eligibility (RE) code so that he can have an opportunity to continue his military career. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 14 May 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 26 September 2003 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: 237th CS Co, Fort Dix, NJ f. Current Enlistment Date/Term: OAD/ 21 February 2003, 545 days g. Current Enlistment Service: 7 months, 6 days h. Total Service: 9 Years, 4 months, 3 days i. Time Lost: None j. Previous Discharges: USAR (940524-940920), NA IADT (940921-950303), HD ` USAR (950304-030220), NIF (Concurrent Service) k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 63J10/QM and Chemical Equipment Repairer m. GT Score: 95 n. Education: GED o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM-2, AFRM-w/M-DEV, ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: Yes, 19 November 2010 SUMMARY OF SERVICE: The record shows the applicant enlisted in the USAR on 24 May 1994, for a period of 8 years. He was 17 years old and had a high school equivalency (GED). He was ordered to active duty on 21 February 2003, for 545 days. He was trained in and awarded military occupational specialty (MOS) 63J10, QM and Chemical Equipment Repairer. His record shows he was serving at Fort Dix, NJ, when his discharge was initiated. His record does not contain any significant achievements or meritorious awards. SEPARATION FACTS AND CIRCUMSTANCES: 1. The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature. 2. The DD Form 214 indicates that on 26 September 2003, the applicant was discharged under the provisions of Chapter 10, AR 635-200, in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. Further, the DD Form 214 shows a Separation Code of KFS (in lieu of trial by court-martial) with a reentry eligibility (RE) code of 4. 3. The applicant’s available record does not show any record of actions under the UCMJ or unauthorized absences or time lost. 4. On 26 September 2003, Department of the Army, Headquarters , United States Army, Fort Dix, New Jersey, Orders Number 269-0004, discharged the applicant from the Army effective 21 February 2003. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. There are no negative counseling’s or actions under the Uniform Code of Military Justice in the available record. 2. Separation orders dated 26 September 2003, copy of the DD Form 214 for the period of service under review. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant submitted an online DD Form 293 and DD Form 214. POST-SERVICE ACTIVITY: None provided with the 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 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 the characterization of his discharge was carefully considered. However, after examining the applicant’s military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. This document identifies the reason and characterization of the discharge. Barring evidence to the contrary, it appears all requirements of law and regulation were met and the rights of applicant were fully protected throughout the separation process. 3. The applicant's contentions that he used all avenues to get his childcare situation under control and kept his chain of command informed were carefully considered. However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service. Moreover, there is a presumption of regularity in the conduct of governmental affairs. This presumption is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted. The applicant’s statements alone do not overcome the presumption of government regularity in this case and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. 4. The applicant desires to rejoin the Military Service. However, 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. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 5. Therefore, based on the available evidence and the presumption of government regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 25 August 2014 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. Military Magistrate Confinement Report – 2 pages b. Army Community Service Letter – 1 page c. NYPD Investigative report – 2 pages d. DD -214 e. Social Security Rating for Disability Decision – 9 pages 2. The applicant presented no additional issues. 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: 2 No Change: 3 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) AR20140008723 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1