IN THE CASE OF: Mr. BOARD DATE: 27 March 2015 CASE NUMBER: AR20140006108 ___________________________________________________________________________ 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 did not properly annotate his application for a possible upgrade. The applicant’s request would be considered for an upgrade of the characterization of his service from under other than honorable conditions to fully honorable, in accordance with Department of Defense Instruction (DoDI) 1332.28, and his application would also be considered for a change to the narrative reason for his discharge. 2. The applicant states, in pertinent part and in effect, he did not enlist in the Regular Army but enlisted in the Army National Guard (ARNG) for a period of three years. He believes placing him in the Regular Army and demoting him are erroneous. He had returned home on leave for medical purposes. He was telephonically informed by Fort Benning that he had completed his training and the incomplete part was only for the graduation ceremony, but to return to his ARNG unit. In 2009, he completed his probation incarceration due to domestic dispute(s) rendered by a civil court. The ARNG knew of his court conviction and his unit helped him stay active on drills. Accordingly, the dates do not coincide with the AWOL charge. He asks for clarification and corrections because he needs to pursue his career. During the period, he was grieving due to his discharge and divorce; he showed up for drills but did not claim it because he was in and out of jail. He recently left a job due to his lower back injury that he received in basic training, which was the reason for his medical leave. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 3 April 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 6 May 2009 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: C Co, 2nd Bn, 19th Infantry, Fort Benning, GA f. Current Enlistment Date/Term: 26 April 2005, OSUT g. Current Enlistment Service: 0 years, 5 months, 16 days h. Total Service: 1 year, 0 months, 12 days i. Time Lost: 1,303 days j. Previous Discharges: ARNG (040930-050425) / NA k. Highest Grade Achieved: E-2 l. Military Occupational Specialty: None m. GT Score: 84 n. Education: GED o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: None 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 Army National Guard on 30 September 2004, for a period of 3 years with an MSO of 8 years. On 26 April 2005, he reported for OSUT pursuant to MEPS Orders 5098005, for a period of 14 weeks or completion of both basic and MOS training. He was 19 years old at the time of entry and had a high school equivalency (GED). His record documents no acts of valor or significant achievement. He completed 1 year and 12 days of active duty and reserve service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The applicant’s disciplinary history includes accrual of 1,303 days of time lost for being AWOL from 11 August 2005, until his apprehension by civil authorities on 5 March 2009. 2. On 12 March 2009, a court-martial charge was preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) based on the AWOL offense outlined in the preceding paragraph. On 12 March 2009, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and of the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him. Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 3. In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge. He also confirmed his understanding that if his request for discharge was approved, he could receive an under other than honorable conditions discharge. He further stated he understood that receipt of an under other than honorable conditions (UOTHC) discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws. The applicant confirmed he had no desire to perform further military service and did not submit a statement in his own behalf. 4. On 13 April 2009, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued a UOTHC Discharge Certificate. 5. On 6 May 2009, the applicant was discharged accordingly. The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 1 year and 12 days of creditable active military service and accrued 1,303 days of time lost due to being AWOL. The record also shows 55 days of excess leave from 13 March 2009 through 6 May 2009. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Charge Sheet described at the preceding paragraphs 1 and 2. 2. Memorandum, undated, rendered by the Fort Sill’s servicing trial counsel, indicates there were no legal objections to continuing the applicant’s request for discharge in lieu of trial by court-martial, in accordance with AR 635-200, Chapter 10. 3. Four DA Forms 4187, Personnel Actions, report the following changes in status: a. dated 13 March 2009, indicates the applicant’s status changed from DFR to PDY/Returned to Military Control, effective 5 March 2009. b. dated 11 September 2005, indicates the applicant’s status changed from AWOL to DFR, effective 11 September 2005. c. dated 11 August 2005, indicates the applicant’s status changed from PDY to AWOL, effective 11 August 2011. 4. Orders 076-17, dated 17 March 2009, published by US Army Installation Management Command, HQs, USAG-Fort Sill, Fort Sill, OK, indicate the applicant was assigned the Personnel Control Facility (PCF), Fort Sill, OK, effective 5 March 2009. 5. Report of Return of Absentee, dated 5 March 2009, indicates the applicant was apprehended by civil authorities and returned to military authorities on 5 March 2009. 6. Orders 340-014, dated 6 February 2007, published by the Oregon National Guard, Salem, OR, indicate the applicant was discharged from the ARNG and reassigned to a Regular Army unit, Co C, 2nd Bn, 19th Infantry, 198th USAITB, Fort Benning, GA, effective 11 September 2005. 7. Orders 5098005, dated 8 April 2005, published by MEPS, Portland, OR, indicate the applicant was ordered to report to 30th AG Bn (Reception), Fort Benning, GA, on 27 April 2005, for approximately 14 weeks or upon completion of basic and MOS training (OSUT). 8. A Summarized Record of Proceedings under Article 15, UCMJ, dated 2 June 2005, for sleeping on guard duty (050526). The punishment consisted of 7 days of extra duty and restriction. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a self-authored statement; DD Form 214 for service under current review; VA, Statement in Support of Claim, dated 19 May 2014; ARNG letter, dated 9 April 2013; DD Form 214, dated 12 August 2005, with an HD; and NGB Form 22, dated 5 February 2007. 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 did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered his application for a possible upgrade as instructed, in pertinent part, by DoDI 1332.28, which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. His application would also be considered for a change to the narrative reason for his discharge. 2. The applicant’s request for an upgrade of the characterization of his discharge and to change the narrative reason for his discharge was carefully considered. However, after examining the applicant’s record of service, his military records, and the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or to change the narrative reason for his discharge. 3. 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. 4. 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. 5. The applicant contends his DD Form 214 requires corrections because the Army National Guard NGB Form 22 correctly reports his service and discharge date. However, upon carefully reviewing the applicant’s contentions and record of service, it appears he was reported being AWOL while he was on active duty for training, until he was apprehended by civil authorities and returned to military control. Further, the applicant’s record contains orders from his respective state Army National Guard, dated 6 February 2007, which transferred him to the Active Component, effective 12 September 2005, retroactively. 6. Regarding the narrative reason for his discharge, 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. 7. 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: 27 March 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) AR20140006108 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1