IN THE CASE OF: BOARD DATE: 21 January 2015 CASE NUMBER: AR20140000048 ___________________________________________________________________________ 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 to upgrade the characterization of his service from under other than honorable to honorable and to change the narrative reason for his discharge. 2. The applicant states, in pertinent part and in effect, there are equity and propriety issues with his discharge. He felt there was no equity in his trial/investigation as Army regulations were not followed with respect to facts, the lack of confidence in both his command and legal counsel, and being treated unfairly caused him to elect a Chapter 10 discharge. His company commander pushed for the discharge and shared improper comments with the investigator that he must be guilty—he was classified as a Soldier who is “hurt for insurance purposes” due to being injured in a car accident. There were no insurance issues occurring and the breakdown in leadership resulted in improper treatment, which led to his current discharge. He completed 90 percent of his enlistment term. His approved medical discharge was nullified due to charges being filed against him. The applicant added several incidents and being forced to take several medications caused him to become deeply depressed. Several attempts to be treated for his service-connected injuries were denied by VA. He has suffered losing his educational benefits and obtaining better employment. Since his discharge, he has worked hard to become a respected business owner and active member of the community, and a better father and husband. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 18 December 2013 b. Discharge Received: Under Other than Honorable Conditions c. Date of Discharge: 10 December 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: 92nd Chem Co, 703rd Main Spt Bn, Fort Stewart, GA f. Current Enlistment Date/Term: 21 March 2001, 3 years g. Current Enlistment Service: 2 years, 8 months, 20 days h. Total Service: 2 years, 8 months, 20 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 54B10, Chemical Operations Specialist m. GT Score: 107 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Iraq/Kuwait (030124-030716) q. Decorations/Awards: ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 21 March 2001, for a period of 3 years. He was 17 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 54B10, Chemical Operations Specialist. He served in Iraq and Kuwait. His record documents no other acts of valor or significant achievement. He completed 2 years, 8 months, and 20 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 2 October 2003, the applicant was charged with the following offenses: a. Charge I: violation of Article 80, UCMJ, for attempting to steal insurance claim money (030513); b. Charge II: violation of Article 107, UCMJ, for making a false official statement (030513); and c. Charge III: violation of Article 121, for stealing rental car expenditures (030513). 2. Although the actual request for discharge in lieu of trial by court-martial is not available in the record, the applicant’s submitted evidence (at Exhibit P) includes his request, which reflects that he submitted his request on 6 November 2003. The request, as a result of his consultation with legal counsel, indicates he 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. He indicated that 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. The applicant indicated he would be submitting a statement on his own behalf (NIF). The record further reflects the unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge. 3. Subsequently on 21 November 2003, 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 10 December 2003, with a characterization of service of under other than honorable conditions. 5. The applicant’s record of service does not show any record of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Charge sheet listing the charges described at the preceding paragraph 1 indicates the charges were referred to trial by a special court-martial empowered to adjudge a bad-conduct discharge on 3 October 2003. 2. Memorandum for the GCMCA, dated 21 November 2003, rendered by the servicing Staff Judge Advocate provides a background, discussion, and recommendation of the applicant’s request for discharge in lieu of trial by court-martial under the provisions of AR 635-200, Chapter 10. 3. CID Report, dated 24 June 2003, indicates the applicant was the subject of an investigation for making a false official statement and false report of a crime, and insurance fraud. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a self-authored statement with a list of his memberships and affiliations, volunteering with several organizations, and education credentials; Exhibit A, criminal records of apprehended and released parties; Exhibit B, medical board and PEB findings; Exhibit C, bank statements; Exhibit D, applicant’s sworn statement; Exhibit E, spouse’s sworn statement; Exhibit F, CID agent’s investigation report; Exhibit G, medical issues, IG reference misconduct, MEB report; Exhibit H, charge sheet, insurance/investigators valuation, loan balance, proof vehicle was a V-6; Exhibit I, CID agents investigation report; Exhibit J, news articles; Exhibit K, letters of recommendation; Exhibit L, education, awards, organizations, and community service documents; Exhibit M, “criminals’ sworn statements; Exhibit N (omitted); Exhibit O, DD Form 214 for service under current review, ERB, deployment history; and Exhibit P, documents supporting his request to change the narrative reason for his discharge: duplicate self-authored statement, record of trial cover sheet, Special Court-Martial Order Number 43, dated 12 December 2003, separation packet with chapter 10 request, and proceedings of a Article 39(a) preliminary special (BCD) court-martial session packet. POST-SERVICE ACTIVITY: The applicant states, in effect, since his discharge, he has worked hard to become a respected business owner and active member of the community, and a better father and a spouse. 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 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 and a change to the narrative reason for his discharge 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 or a change to the narrative reason for his discharge. 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 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 contentions regarding what he considers as equity and propriety issues with his discharge were carefully considered. However, 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 his issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discriminated. The applicant’s statements alone do not overcome the government’s presumption of regularity and insufficient corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 5. The applicant contends having suffered from injuries he received while on active duty and being forced to take several medications caused him to become deeply depressed, and that his approved medical discharge was nullified due to the court-martial charges. However, the Department of Defense disability regulations do not preclude a disciplinary separation while undergoing a medical board. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board and is subsequently processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped and the board report is filed in the member’s medical record. 6. The applicant has expressed making several attempts to be treated for his service-connected injuries but was denied by VA, and that he has suffered losing his educational benefits and obtaining better employment. 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 remain in contact with a local office of the Department of Veterans Affairs for further assistance. Further, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities, or obtaining educational benefits. 7. The applicant’s post-service accomplishments have been noted as outlined on the application and in the documents with 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. 8. In addition, the applicant was separated under the provisions of Chapter 10, AR 635-200 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 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. 9. The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process pursuant to his request for discharge in lieu of trial by court-martial under Chapter 10, AR 635-200. Accordingly, the character of the applicant’s discharge is commensurate with his overall service record. 10. Therefore, the reason and 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: 21 January 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: None 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: 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) AR20140000048 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1