IN THE CASE OF: Mr. BOARD DATE: 15 December 2014 CASE NUMBER: AR20140001544 ___________________________________________________________________________ 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 general, under honorable conditions or honorable. 2. The applicant states, in effect, in June 2012, he had a legal obligation to attend his final court in Ohio. His unit had returned from the field and was preparing to take leave. His NCO told him that he could not leave but felt he had to make it to court, so he left. He has never been in any trouble with the law before. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 16 January 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 13 June 2013 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: A Trp, 1st Cavalry Regiment, 2nd BCT, 1st AD, Fort Bliss, TX f. Current Enlistment Date/Term: 2 November 2010, 4 years g. Current Enlistment Service: 1 year, 7 months, 12 days h. Total Service: 4 years, 5 months, 20 days i. Time Lost: 244 days j. Previous Discharges: ARNG (080425-080916) / HD RA (080917-101101) / HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 19D10, Cavalry Scout m. GT Score: 97 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Afghanistan (100130-110129) q. Decorations/Awards: ARCOM; AGCM; NDSM; ACM-CS; GWOTSM; ASR; OSR; NATO MDL; CIB r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 17 September 2008, and reenlisted on 2 November 2010, for a period of 4 years. He was 18 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 19D10, Cavalry Scout. He served in Afghanistan. He earned an ARCOM. He completed 4 years, 5 months, and 20 days of active duty and reserve service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence of record contains a DD Form 458, Charge Sheet which indicates that on 26 April 2013, the applicant was charged with the following offenses: a. Charge I, violation of Article 86, UCMJ, for being AWOL (120620-121002); b. Charge II, violation of Article 90, UCMJ, for disobeying a superior commissioned officer (130403); and c. Charge III, violation of Article 134, UCMJ, for violating a state alcohol beverage code, by making alcohol available to a minor. 2. On 16 March 2013, 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. The applicant did not submit a statement on his own behalf. The unit commander and intermediate commanders recommended approval of an under other than honorable conditions discharge. 3. On 6 June 2013, 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 13 June 2013, with a characterization of service of under other than honorable conditions. 5. The applicant’s record of service indicates a total of 244 days time lost due to being AWOL from 20 June 2012 until his apprehension on 2 October 2012, by civil authorities; being confined by civil authorities from 2 October 2012, until 28 January 2013, when he was returned to present for duty status; and being in a pretrial confinement from 16 May 2013 through 6 June 2013. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Charge sheet described at the preceding paragraph 1. 2. DD Form 2718, Inmate’s Release Order, dated 7 June 2013, indicates the applicant was released from pretrial confinement. 3. Memorandum, dated 15 May 2013, subject: Pretrial Confinement [the applicant], indicates the commander ordered the applicant into pretrial confinement on 15 May 2013. A confinement order, dated 16 May 2013, directed a pretrial confinement. 4. DD Form 616, Report of Return of Absentee, dated 2 October 2012, indicates the applicant was apprehended by civil authorities on 2 October 2012. 5. Six DA Forms 4187, Personnel Actions, indicates the applicant’s duty statuses as follows: a. dated 11 June 2013, status changed from confinement to PDY, effective 7 June 2013 (followed by being in a pretrial confinement on 16 May 2013); b. dated 6 August 2013, status changed from CCA to PDY, effective 28 January 2013; c. dated 6 August 2012, status changed from DFR to CCA, effective 2 October 2012; d. dated 26 July 2012, status changed from AWOL to DFR, effective 20 July 2012; e. dated 21 June 2012, status changed from PDY to AWOL, effective 20 June 2012 6. Two counseling statements, dated 4 April 2013, indicates the applicant was counseled for failing to obey an order or regulation; consenting to underage drinking; and disrespecting a superior commissioned officer and an NCO. 7. An Article 15, dated 20 March 2013, for being AWOL (120620-130128). The applicant demanded trial by court-martial and the proceedings were abated. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided DD Form 214 for service under current review. POST-SERVICE ACTIVITY: The applicant provided none. 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 an SPD Code of "KFS" will be assigned an RE Code of 4. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his service was carefully considered. However, after examining the applicant’s record of service, and the issue and document submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's 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. Although his record documents acts of significant achievement or valor, they did not support the issuance of an honorable or a general discharge by the separation authority and they do not support an upgrade to an honorable or a general discharge at this late date. 4. The applicant contends he had a legal obligation to attend his final court but was denied leave to attend his court which may have caused him to go AWOL. However, 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. 5. 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: 15 December 2014 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) AR20140001544 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1