Applicant Name: ????? Application Receipt Date: 2012/03/20 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he is requesting an upgrade of his discharge to honorable and a change to the reason for his discharge for employment purposes. He is attempting to obtain a career in the field of law enforcement and feels that his discharge was based on a single and isolated incident, he was also having family problems. II. Were Proper Discharge and Separation Authority procedures followed? Tender Offer: None See Attachments: Legal Medical Minority Opinion Exhibits III. Discharge Under Review Unit CDR Recommended Discharge: Date: 990317 Discharge Received: Date: 990611 Chapter: 10 AR: 635-200 Reason: In Lieu of Trial by Court-Martial RE: SPD: KFS Unit/Location: A Co, 1-22 IN Rgt, Fort Hood, TX Time Lost: 26 days, AWOL (990217-990314), mode of return is unknown. 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: 980701 Current ENL Term: 4 Years ????? Current ENL Service: 00 Yrs, 10 Mos, 15 Days ????? Total Service: 00 Yrs, 10 Mos, 15 Days ????? Previous Discharges: None Highest Grade: E-3 Performance Ratings Available: Yes No MOS: 11M10, FV Infantryman GT: 114 EDU: HS Grad Overseas: None Combat: None Decorations/Awards: ASR V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: Has achieved an Associate of Arts degree in criminal justice. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 17 March 1999, the applicant was charged with missing movement (990218) and desertion, in that on 17 February 1999, without authority and with the intent to remain away permanently, absented himself from his unit and did remain so absent in desertion until 14 March 1999. On 11 May 1999, 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 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 did not submit a statement in his own behalf. The unit commander and intermediate senior commanders recommended approval of the separation with an under other than honorable conditions discharge. On 27 May 1999, the separation authority approved the Chapter 10 request and directed a discharge with a characterization of service of under other than honorable conditions. 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, the documents and the issues submitted with the application, the analyst found no mitigating factors which 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 the applicant was aware of that prior to requesting discharge. The applicant contends that he discharge was based on an isolated incident, was having family problems, and is now seeking a career in law enforcement. The analyst noted that even though 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 that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The analyst having examined all the circumstances determined that the applicant's single 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 single incident of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge. He also contends that the reason for his discharge should be changed. However, the applicant was discharged under the provisions of Chapter 10, AR 635-200, by reason of in lieu of trial by a court-martial 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 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. Further, the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct which led to the separation action under review. He could have sought help for family his problems from his chain of command or the numerous Army community service providers like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. Finally, the analyst noted the applicant's issue about his desire to pursue a career in the law enforcement field; however, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. Therefore, the analyst determined the reason for discharge and the characterization of service 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: 30 August 2012 Location: Chicago, IL Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: Applicant's brother. Exhibits Submitted: College transcripts, military awards, two character reference letters. Certificates, and the results of a law enforcement test. VIII. Board Discussion, Determination, and Recommendation After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and notwithstanding the analyst’s recommendation and rationale, the Board determined that the characterization of service is now too harsh based on the applicant’s post service accomplishments (community service as assistant youth minister) and the circumstances surrounding the misconduct (nature of the offense), and as a result it is inequitable. Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined that the reason for discharge was proper and equitable and voted not to change it. This action entails restoration of grade to E-3/PFC. IX. Board Decision Board Vote: Character - Change 4 No change 1 Reason - Change 0 No change 5 (Board member names available upon request) X. Board Action Directed Issue a new DD Form 214 Change Characterization to: Change Reason to: NA Other: NA RE Code: Grade Restoration: No Yes Grade: E-3/PFC XI. Certification Signature Approval Authority: ARCHIE L. DAVIS III Colonel, U.S. Army President, Army Discharge Review Board BONITA E. TROTMAN Lieutenant Colonel, U. S. Army Secretary Recorder 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 AR20120005867 ______________________________________________________________________________ Page 3 of 4 pages