IN THE CASE OF: Mr. BOARD DATE: 20 October 2014 CASE NUMBER: AR20140012869 ___________________________________________________________________________ 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 applicant’s length and quality of his service 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. 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 honorable. 2. The applicant states, in effect, he sought care from the VA; however, was denied based on his character of service of “Other Than Honorable Conditions.” The applicant states that after his injury he was sent to “FTC” for rehabilitation and, while there, he was accused of improper fraternization by two privates. The applicant contends the statements made by the two privates were false and later recanted. The applicant contends an upgrade will restore his stolen honor and would allow him the medical care and VA benefits he earned as a Soldier. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 18 July 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 10 July 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: 43rd AG Battalion, Fort Leonard Wood, MO f. Current Enlistment Date/Term: 15 May 2002/NIF g. Current Enlistment Service: 1 year, 1 month, 26 days h. Total Service: 1 year, 1 month, 26 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: None m. GT Score: NIF n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: None r. Administrative Separation Board: N/A s. Performance Ratings: N/A t. Counseling Statements: NIF u. Prior Board Review: Yes SUMMARY OF SERVICE: The applicant enlisted in the US Army Reserve on 15 May 2002, (period of enlistment or enlistment contract NIF). He was 18 years old at the time of entry. His record documents no acts of valor or significant achievement. He completed 1 year, 1 month, and 26 days of active duty service. When his discharge proceedings were initiated, he was serving at Fort Leonard Wood, Missouri. 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 10 July 2003, 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, with a reentry eligibility (RE) code of 4. 3. The applicant’s available record does not show any evidence of actions under the UCMJ, or unauthorized absences or time lost. 4. On 9 July 2003, HQDA USA Maneuver Support Center and Fort Leonard Wood, Fort Leonard Wood, MO, Orders Number 190-0355, discharged the applicant from the Army effective 10 July 2003. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. There are no negative counselings or actions under the Uniform Code of Military Justice. The applicant’s record does not contain any enlistment documents. 2. DD Form 214 and discharge orders for service under current review. 3. DA Form 2173, Statement of Medical Examination and Duty Status, dated 20 June 2002, indicates the applicant incurred an injury in line of duty, a right femur fracture on 11 June 2002, from “pugil” stick training. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a self-authored statement, two statements from alleged victims, dated 2 March 2003, and three x-ray images of right femur, dated 14 November 2002. POST-SERVICE ACTIVITY: The applicant states, in effect, he obtained a degree in computer science, and worked the last ten years with the state Blue Cross and Blue Shield. 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 his characterization was carefully considered. However, after examining the applicant’s record of service, and the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. Although the applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army, 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. Absent any record of service and a complete record of the applicant’s discharge, and 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 under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. His 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's contentions regarding fraternization and the false and recanted statements of the two privates, alleged victims, 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 which 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 and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. 5. The applicant contends an upgrade of his discharge would provide him VA benefits and medical care. However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board, but within the purview of a local office of the Department of Veterans. 6. The applicant contends that since leaving the Army he has been employed for the last 10 years and also obtained a degree in computer science. The applicant’s post-service accomplishments have been noted as outlined on the application. However, in review of the applicant’s 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. 7. Additionally, the Army Discharge Review Board is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character. 8. The statements provided with the application rendered prior to the applicant’s discharge appear to have been considered during his pretrial investigation and separation proceedings. As such, none of the statements provide any evidence sufficiently compelling to overcome the presumption of government regularity or toward consideration for an upgrade. 9. 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. 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, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service 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. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 20 October 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: None Witnesses/Observers: Mother (O) and Father (O) DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional documents: a. Letters of recommendation 3 pages b. Letters from CPT Wells – 6 pages 2. The applicant presented the additional issues. a. The applicant avers he attained his High School Diploma b. The applicant avers he attained an MOS of 88M (Motor Transport Operator) 3. In addition to the evidence in the record, the Board carefully considered the additional documents, issues, 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: 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) AR20140012869 Page 2 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1