IN THE CASE OF: BOARD DATE: 22 September 2014 CASE NUMBER: AR20140011618 ___________________________________________________________________________ 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 notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the circumstances surrounding his discharge. The court-martial charges do not warrant the severity of the punishment imposed, and as a result, it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the reason for discharge was proper and equitable and voted not to change it. This action entails restoration of grade to E-4/SPC. 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 to upgrade the characterization of his service from under other than honorable to general, under honorable conditions and to change the reentry code that corresponds with the narrative reason for his discharge. 2. The applicant states, in effect, his discharge is inequitable because it was based on one isolated incident in his 36 months of active duty service with no other adverse action. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 27 June 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 21 January 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: HHC, 11th Sig Bde, Fort Huachuca, AZ f. Current Enlistment Date/Term: 26 July 2001, 3 years g. Current Enlistment Service: 3 years, 9 days h. Total Service: 3 years, 9 days i. Time Lost: 167 days j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 92Y10, Unit Supply Specialist m. GT Score: 89 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: NIF u. Prior Board Review: Yes SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 26 July 2001, for a period of 3 years. The record further reflects he was involuntarily extended due to a sentence of confinement by a general court-martial that began on 8 July 2004. 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) 92Y10, Unit Supply Specialist. His record documents no acts of valor or significant achievement. He completed 3 years and 9 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The applicant’s record is limited to General Court-Martial Order Number 1, dated 23 February 2005, that announced the findings of guilty of three court-martial charges and the approved sentence adjudged on 8 July 2004, which lists the specific facts and circumstances concerning the events which led to the discharge from the Army. Absent any further information on the applicant’s request for Chapter 10 discharge, the record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant’s signature. 2. The DD Form 214 indicates that on 21 January 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 reentry eligibility (RE) code of 4. 3. On 7 January 2005, HQDA, USA Field Artillery Center and Fort Sill, Fort Sill, OK, Orders Number 007-31, discharged the applicant from the Army, effective 21 January 2005. The record also shows 31 days of excess leave from 22 December 2004 through 21 January 2005. 4. The applicant's record shows 167 days of time lost due to military confinement from 8 July 2004 through 21 December 2004, as a result of a GCM court-martial sentence. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. General Court-Martial Order Number 1, dated 23 February 2005, indicates the applicant was found guilty of the following charges (040708): a. violation of Article 81, UCMJ, conspiring with other Soldiers to commit larceny (020901 and 030430); b. violation of Article 107, falsifying official records on divers occasions (020901-030430); and c. six specifications of violation of Article 121, UCMJ: (1) for wrongfully appropriating property of a value of $3,568 (030409), and (2) five specifications of stealing US property of a value of $541.07 (021216), $452.50 (021216), $452.50 (030204), $727.89 (030312), $199 (021224), and $500 or less (021114-030326). The sentence consisted of a reduction to E-1; a fine of $3,500 and to service an additional confinement of 12 months, if the fine was not paid at the time the GCMCA approved the sentence; forfeiture of all pay and allowances; confinement for 12 months; and to be discharged with a bad conduct discharge. On 23 February 2005, the GCMCA approved the findings of guilty and directed only so much of the sentence as provides for reduction to E-1; forfeiture of all pay and allowances; and confinement for 6 months and 14 days, be executed. The GCMCA action further indicated the request for discharge pursuant to Chapter 10 was approved on 21 December 2004, with issuance of an under other than honorable conditions discharge. 2. The available record does not show any further evidence of actions under the UCMJ, or any negative counseling statements. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided two letters of support; pages 97-109 of the GCM record of trial proceedings (character witness testimony); Chapter 10 decision memorandum, dated 21 December 2004; and a conferred associate of science degree paralegal certificate, dated 13 January 2013. POST-SERVICE ACTIVITY: The applicant’s submitted evidence reflects receiving an associate’s degree in January 2013. 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 to change the reentry code that corresponds with the narrative reason for his discharge was carefully considered. However, after examining the applicant’s military records, and the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or to change the reentry code. 2. The applicant’s record is limited on 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 not 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. The applicant contends the incident that caused his discharge was the only one in his entire Army career. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant's serious incidents of misconduct as documented in a General Court-Martial Order, adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline. 4. The applicant contends the reentry code that corresponds with the narrative reason for his discharge should be changed, perhaps indicating a desire 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. Further, the applicant was separated under the provisions of Chapter 10, AR 635-200 with an under other than honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," and the separation code is "KFS." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 5. In consideration of the applicant's contention for an upgrade, 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 further evidence available in the record, nor has the applicant produced sufficient evidence, to support a change to the characterization of service granted or the reentry code. The applicant’s statements alone do not overcome the presumption of government regularity in this case and the application contains insufficient documentation or further evidence in support of this request for an upgrade of the discharge. 6. The third party statements provided with the application speak highly of the applicant’s performance and character. However, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant’s chain of command and the characterization of service he received. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 7. The applicant’s post-service accomplishment was also noted in the document with the application; however, this accomplishment did not overcome the reason for discharge and characterization of service granted. 8. 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: 22 September 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: None Witnesses/Observers: Yes DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional documents: a. Testimony from SFC H. b. Recommendation Letter from MAJ V. c. Waivers of Promotion d. Memorandum for Instruction, 0102-12, Breakfast with Forces Command (FORSCOM) Commander and Command Sergeant Major e. Testimony from SGM C. 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: 3 No Change: 2 Reason Change: 0 No Change: 5 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: Yes Change Characterization to: General, Under Honorable Conditions Change Reason to: No Change Change Authority for Separation: No Change Change RE Code to: No Change Grade Restoration to: E-4/SPC 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) AR20140011618 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1