IN THE CASE OF: BOARD DATE: 26 April 2013 CASE NUMBER: AR20130000175 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief. 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 an upgrade of his discharge from under other than honorable conditions to honorable. 2. The applicant states, in effect, he desires to receive VA benefits. He went AWOL from Korea because he could not tolerate the hazing any longer. He served for more than seven years. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 20 December 2012 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 23 October 2012 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, 2-9th Infantry Regt, APO AP 96224 f. Current Enlistment Date/Term: NIF/the applicant current reenlistment date is not in the file, the initial contract dated 24 August 2005 was 3 years, 16 weeks, which means he reenlisted at some point and time, see initial enlistment contract g. Current Enlistment Service: NIF h. Total Service: 6 years, 10 months, 29 days i. Time Lost: 93 days j. Previous Discharges: RA (050824-NIF)/HD, the immediate reenlistment contract is not contained in the available records k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 13F10 F9, Fire Support Spec m. GT Score: NIF n. Education: GED Certificate o. Overseas Service: SWA p. Combat Service: Iraq x 2 (070523-070819), (090809-100603) q. Decorations/Awards: ARCOM-2, AAM-2, AGCM-2, NDSM, ICM-W/CS GWOTSM, NPDR, ASR, OSR-3 r. Administrative Separation Board: No s. Performance Ratings: Yes t. Counseling Statements: No u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army 24 August 2005, for a period of 3 years, 16 weeks. He was 17 years old at the time of entry and a high school graduate. The applicant’s record does not contain the immediate reenlistment contract. His discharge was initiated at Fort Sill, OK. His record also shows that he served two combat tours and earned several awards that included an ARCOM-2, AAM-2, and an AGCM-2. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458, Charge Sheet, which indicates that on 4 October 2012, the applicant was charged with absenting himself from his unit (AWOL) (120626-120927). 2. On 4 October 2012, 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. The applicant 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. 3. On 19 October 2012, the separation authority approved the Chapter 10 request and directed the discharge with a characterization of service of under other than honorable conditions. The applicant was reduced to the lowest enlisted rank. 4. The applicant was discharged from the Army on 23 October 2012, with a characterization of service of under other than honorable conditions under the provisions of AR 635-200,Chapter 10, by reason of in lieu of trial by court-martial, a Separation Program Designator code (SPD) of KFS and a RE code of 4. 5. The applicant's record shows he was AWOL during the period 26 June 20102 through 26 September 2012, for 93 days, until he was apprehended. The applicant was on excess leave 5 October 2012 through 23 October 2012, for 19 days. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: The record does not contain any negative counselings or actions under the Uniform Code of Military Justice. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 13 December 2012. POST-SERVICE ACTIVITY: None provided with application. REGULATORY AUTHORITY: 1. 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. 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. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 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 a SPD Code of "KFS" will be assigned a RE Code of 4. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of his characterization of service was carefully considered. 2. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 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 he served two tours in combat, shows several acts of significant achievements and valor; however, did not support the issuance of an honorable discharge by the separation authority and it does not support an upgrade a honorable discharge at this late date. 4. The applicant desires to receive VA benefits. 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. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 5. The applicant contends he went AWOL from Korea because he could not tolerate the hazing any longer. He had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge. 6. The applicant also contends he served for more than seven years. The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. However, this service was determined not to be sufficiently mitigating to overcome the reason for discharge and the characterization of service granted. 7. The records show the proper discharge and separation authority procedures were followed in this case. 8. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 26 April 2013 Location: Washington, DC Did the Applicant Testify? NA Counsel: NA Witnesses/Observers: NA Board Vote: Character Change: 0 No Change: 5 Reason Change: 0 No Change: 5 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: No Change Characterization to: No Change Change Reason to: No Change Change Authority for Separation: No Change Change RE Code to: No Change 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) AR20130000175 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1