Applicant Name: ????? Application Receipt Date: 2011/04/22 Prior Review: Prior Review Date: 2010/12/20 I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, "The Character of Service on my DD 214 is Other Than Honorable and Army Regulations 635–200 and 135–178 support me having an Entry Level Separation, an honorable, or general (under honorable conditions) Discharge Characterization. The Separation Code on my DD 214 is KFS while a separation code of ELPAC would be supported by Army Regulations. The Reentry Code of my DD 214 is a 4 and an upgrade in this Reentry Code is supported by the requested corrections in my DD 214. I feel the military records are in error and unjust due to Army Regulations 635-200 and 135-178 supporting an Entry Level Separation due to the circumstances surrounding my discharge. I feel the Reentry Code and Discharge Characterization were based on an isolated event and do not correctly reflect my performance and conduct overall while in the military." II. Were Proper Discharge and Separation Authority procedures followed? Tender Offer: NA See Attachments: Legal Medical Minority Opinion Exhibits III. Discharge Under Review Unit CDR Recommended Discharge: Date: 041022 Discharge Received: Date: 041110 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: C Co, 2-54 IN Bn, Fort Benning, GA Time Lost: AWOL for 69 days (040805-041012), apprehended. Article 15s (Charges/Dates/Punishment): None Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 18 Current ENL Date: 040715 Current ENL Term: 04 Years 16 Weeks Current ENL Service: 00 Yrs, 01 Mos, 17 Days ????? Total Service: 00 Yrs, 01 Mos, 17 Days ????? Previous Discharges: None Highest Grade: E-2 Performance Ratings Available: Yes No MOS: None GT: 110 EDU: HS Grad Overseas: None Combat: None Decorations/Awards: None V. Post-Discharge Activity City, State: Murfreesboro, TN Post Service Accomplishments: None Listed VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 21 October 2004, the applicant was charged with absenting himself from his unit AWOL (040805-041013). On 21 October 2004, the applicant consulted with legal counsel and voluntarily requested, in writing, 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. Further, the applicant indicated that he understood that 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. The applicant submitted a statement in his own behalf. The unit commander recommended approval of the Chapter 10 request with an under other than honorable conditions discharge. On 1 November 2004, the separation authority approved the Chapter 10 request and directed an under other than honorable conditions discharge. The applicant was to be reduced to the lowest enlisted rank. b. Legal Basis for Separation: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation 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. c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s military records during the period of enlistment under review, the issues and document submitted with the application, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge. The evidence of record indicates that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. The applicant consulted with defense counsel, and voluntarily in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ. The analyst noted that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It is also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge. The applicant contends that Regulations 635–200 and 135–178, supports him having an uncharacterized, honorable, or general, under honorable conditions discharge. However, Army Regulation 635-200, provides except in cases of serious misconduct, that a Soldier’s service will be uncharacterized when the separation is initiated while the Soldier is in entry level status. The applicant was in an entry-level status and the command had the option to characterize the service as under other than honorable conditions or to describe it as uncharacterized. Due to the misconduct (i.e., AWOL), the command opted to characterize his service as under other than honorable conditions. A general, under honorable conditions discharge is not authorized under ELS conditions (180 days of continuous active duty). A fully honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty. The analyst determined no such unusual circumstances were present in the applicant’s record of service did not warrant an honorable discharge. The applicant requested a change to the narrative reason for separation. The narrative reason for separation is governed by specific directives. The applicant was discharged under the provisions of Chapter 10, AR 635-200. The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," the separation code is "KFS," and the reentry code is "RE 4." 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, separation code, entered in block 26, and RE Code, entered in block 27 of the form, will be entered 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. The applicant contends that his military records are in error and unjust due to Army Regulations 635-200 and 135-178, supporting an Entry Level Separation due to the circumstances surrounding my discharge. There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption. The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support hiscontention. There is no evidence in the record, nor has the applicant provided any evidence, to support the contention that his records are in error and/or unjust. The applicant also contends that reentry eligibility (RE) code and characterization of service were based on an isolated event and do not correctly reflect his performance and conduct overall while in the military. Even though an isolated incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by an isolated incident provides the basis for a characterization. The analyst having examined all the circumstances determined that the applicant's isolated incident of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline. This isolated incident of misconduct clearly diminished the quality of the applicant's service below that meriting an uncharacterized discharge. The applicant submitted numerous cases previously reviewed by the Army Discharge Review Board that he believes support changing the reentry eligibility (RE) code and upgrading his characterization of service. The method in which another Soldier’s case was handled is not relevant to the applicant’s case. Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case. Therefore, the analyst determined that the reason for discharge, the characterization of service to include the reentry eligibility (RE) code were both proper and equitable and recommends to the Board to deny relief. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 22 August 2011 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: No Witnesses/Observers: No Exhibits Submitted: Online application, dated (110415); Letter, U.S. Marine Corps, two (2) pages, dated (110412); Supporting Army Rules, Regulations, and Cases, five (5) pages; and Regulation Information Supporting a Change in Discharge Characterization, Separation (SPD) Code, and Reentry (RE) Code, three (3) pages. The applicant submitted the additional documents in support of his personal appearance hearing; Court Documents, thirteen (13) pages, Army Regulations Documents, nine (9) pages, Training Documents, twenty five (25) pages, Letters, Basic Training, seven (7) pages, and Letters, from JS, five (5) pages. VIII. Board Discussion, Determination, and Recommendation After carefully examining the applicant’s record of service during the term of service under review, hearing his testimony and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief. IX. Board Decision XI. Certification Signature Board Vote: Approval Authority: Character - Change 0 No change 5 Reason - Change 0 No change 5 (Board member names available upon request) EDGAR J. YANGER Colonel, U.S. Army X. Board Action Directed President, Army Discharge Review Board Issue a new DD Form 214 Change Characterization to: Change Reason to: No Change Other: NA RE Code: Grade Restoration: No Yes Grade: None Legend: AWOL Absent Without Leave GCM General Court Martial NA Not applicable SCM Summary Court Martial BCD Bad Conduct Discharge GD General Discharge NIF Not in the file SPCM Special Court Martial CG Company Grade Article 15 HD Honorable Discharge OAD Ordered to Active Duty UNC Uncharacterized Discharge DD Dishonorable Discharge HS High School Graduate OMPF Official Military Personnel File UOTH Under Other Than Honorable FG Field Grade Article 15 IADT Initial Active Duty Training RE Reentry Code Conditions ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20110009457 ______________________________________________________________________________ Page 1 of 4 pages