1. Applicant's Name: a. Application Date: 16 May 2016 b. Date Received: 20 May 2016 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to general (under honorable conditions). The applicant seeks relief contending, in pertinent part and in effect, his discharge was inequitable because it was based on one isolated incident in over seven years of service with no other adverse action. Change to his discharge is warranted because of its negative effects, which outweighs the reasons for the discharge, makes it unfair. The applicant, in his self-authored statement, explained the circumstances surrounding the incidents that led to his current discharge, and the appellate process of his court-martial. Subsequently, when the appellate Court determined for a retrial, he requested a discharge in lieu of trial by a court-martial. He contends that it appeared to be a reasonable solution, a better discharge and his court-martial conviction would be erased; however, it did not take long for him to realize how much of a mistake it was. It took everything away, his MOS, and he was emotionally and financially crippled-he never imagined life without military service as he tried to put his life back together. He had never been subjected to any disciplinary action. He received awards and accolades, and was considered an admirable member of his unit. He was promoted to SGT/E-5 under four years and was awarded his first AAM, months after being assigned to his first unit. He took pride in wearing his uniform, representing the US Army. He has since been able to move forward in life but it has not been as full or satisfying, having his current discharge hang over his head. He understands he went against orders, but his morality and deep commitment to protect, compelled him to do so. He cannot change the past but would like consideration of his plea for a change to his discharge. His discharge has haunted him for the last 13 years. In a records review conducted at Arlington, VA on 27 July 2017, and by a 3-2 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include his combat service, severe family matters, prior period of honorable service, and post-service accomplishments as annotated in the case report and directive, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to honorable. 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-5/SGT. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 12 August 2005 c. Separation Facts: (1) DD Form 458 (Charge Sheet): NA; but on the basis of the applicant's post-trial appellate review. As a result of the appellate review process and pursuant to the US Army Court of Criminal Appeals Memorandum Opinion, dated 26 April 2005, in which the Court determined that the applicant's previous plea of guilty to a lesser offense of AWOL from 8 November 2002, until 9 April 2003, and the "'[a]ppellant's repeated statements about his concern for the safety of his girlfriend and her children throughout the [military judge's] Care [United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969)] inquiry and during presentencing were 'sufficient at least to raise the defense of duress.' See United States v. Palus, 13 M.J. 179, 180 (C.M.A. 1982); United States v. Roby, 23 U.S.C.M.A. 295, 49 C.M.R. 544 (1975)." Accordingly, the Court's determination that the applicant's "statements were sufficient to set up a matter inconsistent with his plea of guilty to the AWOL offense," and finding that the applicant's record of trial contained "a substantial basis in law and fact for questioning the plea" of guilty, the Court set aside Charge I and its Specification" and the court-martial sentence, and affirmed the "remaining findings of guilty." The Court provided further guidance for the convening authority as to conducting "a rehearing on Charge I and its Specification," and if finding that "impracticable," the convening authority "may dismiss the offense and order a rehearing on the sentence only," and if it is determined "that a rehearing on the sentence is impracticable," the convening authority "may approve a sentence of no punishment." On the aforementioned basis for rehearing, the applicant, instead, requested a discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial. (2) Legal Consultation Date: Undated (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 28 July 2005 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 26 September 2000 / 3 years b. Age at Enlistment / Education / GT Score: 18 / HS Graduate / NIF c. Highest Grade Achieved / MOS / Total Service: E-5 / 11B10, Infantryman / 8 years, 4 months, 8 days (includes an involuntary excess leave, creditable for all purposes except for pay and allowances for 694 days from 19 September 2003 to 12 August 2005) d. Prior Service / Characterizations: RA (22 July 1996 to 25 September 2000) / HD e. Overseas Service / Combat Service: Bosnia / Bosnia (7 March 1997 to 20 November 1997) f. Awards and Decorations: ARCOM; AAM-3; AGCM; NDSM; AFEM; AFSM; NCOPDR; ASR; NATOMDL g. Performance Ratings: Four NCOERS rendered during period under current review: July 2000 thru January 2001, Fully Capable February 2001 thru January 2002, Fully Capable February 2002 thru August 2002, Fully Capable September 2002 thru June 2003, Marginal h. Disciplinary Action(s) / Evidentiary Record: Five DA Forms 4187 provide the following changes to the applicant's duty status: dated 12 November 2002, from PDY to AWOL, effective 8 November 2002; dated 8 December 2002, from AWOL to DFR, effective 8 December 2002; dated 9 April 2003, from DFR to PDY, effective 5 April 2003; dated 30 June 2003, from PDY to Confined Military Authorities, effective 6 June 2003; and dated 22 September 2003, from Confined Military Authorities to PDY, effective 19 September 2003. Report of Return of Absentee, dated 5 April 2003, indicates the applicant was apprehended by civil authorities on 5 April 2003, and returned to military authorities. SPCM Order No. 37, dated 24 September 2003, promulgated the charges of violating Article 86, UCMJ, for being AWOL for more than 30 days on 8 November 2002 until his apprehension on 9 April 2003; and violating Article 121, UCMJ, for wrongfully appropriating by failing to return a passenger car of a value of more than $500, the property of SGT S.D. on 9 November 2002. The sentence, adjudged on 16 June 2003, consisted of a reduction to E-1, confinement for 130 days, and a discharge from the service with a bad-conduct discharge. The sentence was approved on 24 September 2003, except for that part of sentence extending to a bad conduct discharge, and the applicant was credited with 10 days of confinement against the sentence to confinement. The United States Army Court of Criminal Appeals Memorandum Opinion, dated 26 April 2005, provides the Court's findings, determination, and guidance on rehearing is, in pertinent part, described at the preceding paragraph 3c(1). SPCM Order No. 122, dated 28 July 2005, in addition to SPCM Order No. 37, dated 24 September 2003, further promulgated the convening authority's action as promulgated the applicant's court-martial, and the subsequent action resulting from the aforementioned Memorandum Opinion. i. Lost Time / Mode of Return: 253 days (AWOL: (8 November 2002 to 4 April 2003) for 148 days / Apprehended by civil authorities), (Pretrial Military Confinement: (6 June 2003 to 15 June 2003) for 10 days, and Military Confinement: (16 June 2003 to 18 September 2003) for 95 days j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 16 May 2016, with self-authored statement; FBI letter with associated documents, dated 10 May 2016; three character reference and supporting statements; SPCM Order No. 122, dated 28 July 2005; discharge orders, dated 9 August 2005; assignment Orders 169-203, dated 18 June 2003; Record of Emergency Data; SGLI Election and Certificate; and personnel qualification record. 6. POST SERVICE ACCOMPLISHMENTS: The applicant's character reference statements provide information that he has been employed as a foreman with an asphalt maintenance company and with a police department animal shelter services. 7. REGULATORY CITATION(S): 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. AR 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." 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. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to general (under honorable conditions). The applicant's record of service, and the issues and documents submitted with his application were carefully reviewed. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel voluntarily requested, in writing, a 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, and he indicated he understood he could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran's benefits. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. His record documents no other acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority. 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 incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. In consideration of the applicant's service accomplishments and quality of his service prior to the incidents that led to his discharge, and his post-service accomplishments, the Board can find that his complete period of service and accomplishments were or were not sufficiently mitigating to warrant an upgrade of his characterization of service. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 27 July 2017, and by a 3-2 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include his combat service, severe family matters, prior period of honorable service, and post-service accomplishments as annotated in the case report and directive, and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to honorable. 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-5/SGT. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD/RE Code to: No Change f. Restore (Restoration of) Grade to: E-5/SGT AUTHENTICATING OFFICIAL: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20160009896 3