IN THE CASE OF: BOARD DATE: 15 May 2015 CASE NUMBER: AR20140010407 ___________________________________________________________________________ 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 APPLICANT’S REQUEST AND STATEMENT: 1. The applicant requests an upgrade of his discharge from under other than honorable to honorable and a change to his reentry eligibility (RE) code. 2. The applicant states, in effect, that an upgrade of his discharge would provide him with needed benefits. He contends his discharge was the result of poor legal counseling he received and a grudge his company command had with him. He was instructed to take the discharge. He withheld information on the guilty person who was threatening him to just get outside of the situation. He is homeless and trying to keep up with his medication. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 12 June 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 24 March 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, 73rd OD Bn, Fort Gordon, GA f. Current Enlistment Date/Term: 13 August 2003, 4 years g. Current Enlistment Service: 1 year, 7 months, 12 days h. Total Service: 1 year, 7 months, 12 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-2 l. Military Occupational Specialty: None m. GT Score: 113 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: None r. Administrative Separation Board: NA s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 13 August 2003, for a period of 4 years. He was 24 years old at the time of enlistment and a high school graduate. He was attending training at Fort Gordon, GA when his discharge was initiated. The record does not contain any evidence of acts of valor or meritorious achievements. 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 24 March 2005, the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the Service 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 (i.e., in lieu of trial by court-martial) with a RE code of 4. 3. On 24 March 2005, DA, HQ US Army Garrison, Fort Gordon, GA, Orders Number 083-0911, discharged the applicant from the Army effective 24 March 2005. 4. The applicant’s available record does not show any evidence of actions under the UCMJ or unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Special Court-Martial Order Number 3, which shows the applicant was charged with knowingly driving private B.K.G., to a pawn shop on Gordon Highway to dispose of stolen merchandise from other Soldiers, of a value of less than $500.00, in order to prevent the punishment of private B.K.G, on or about 7 October 2004; disobeying a lawful order issued by COL A.F.W., and adopted by COL L.L.S., to wit: by wrongfully driving a POV as a Phase IV Soldier, on or about 14 November 2004 and wrongfully possessing and using a cell phone 16 November 2004; wrongfully and knowingly receiving stolen property of a value of less than $500.00, three Michael Jordan Chicago Bulls athletic jerseys, and one pair of Air Jordan XII athletic shoes on 9 October 2004 and again wrongfully and knowingly receiving stolen property of a value of less than $500.00, one each blue M-Mode cellular phone, Game Boy Advance, Dragon Ball Z video game, Legend of Zelda video game, and GBA Final Fantasy video game, on or about 5 January 2005. 2. Furthermore, the Special Court-Martial Order also shows that the applicant having been arraigned, the proceedings were terminated on 24 March 2005 because the applicant requested discharge pursuant to the provisions of Chapter 10, Army Regulation 635-200, was approved on 24 March 2005, for issuance of a discharge under other than honorable conditions. The charge and specifications were dismissed. All rights, privileges, and property of which the applicant had been deprived by virtue of these proceedings were to be restored. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 149 in lieu of DD Form 293 and a self-authored letter. POST-SERVICE ACTIVITY: None was 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 and a change to his RE code was carefully considered. However, after examining the applicant’s available 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 the applicant were fully protected throughout the separation process. 3. He contends his discharge was the result of poor legal counseling he received and a grudge his company command had with him. The applicant's contentions 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. Furthermore, 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. 5. If the applicant desires a personal appearance, it is his responsibility to meet the burden of proof since the evidence is not available in the official record. The applicant will need to provide the appropriate documents or other evidence (i.e., discharge packet) sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration. 6. Additionally; the applicant contends he is currently homeless and needs help. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. Moreover, all veterans at risk for homelessness or attempting to exit homelessness can request immediate assistance by calling the National Call Center for Homeless Veterans hotline at 1-877-424-3838 for free and confidential assistance. 7. 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 the analyst recommends the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 15 May 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) AR20140010407 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1