IN THE CASE OF: BOARD DATE: 21 October 2014 CASE NUMBER: AR20140013852 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony, 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, his discharge was inequitable because it was based on false allegations made by his former spouse. The applicant contends he was not informed of his case being forwarded to the Special Courts Martial until three days prior; therefore, the applicant requested a Chapter 10 In Lieu of Trial by Court-Martial. The applicant contends none of the character statements he submitted or his 16 years of stellar service were factored into the decision to discharge him. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 5 August 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 28 September 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: Headquarters, 95th Civil Affairs Brigade, Fort Bragg, North Carolina f. Current Enlistment Date/Term: 16 June 2007/6 years g. Current Enlistment Service: 5 years, 3 months, 13 days/12e on the DD Form 214, total prior inactive service, is incorrect and should read 3 years, 1 month 0 days h. Total Service: 16 years, 6 months, 7 days i. Time Lost: None j. Previous Discharges: ARNG, 960321-970209, N/A IADT, 970210-970529, UNC ARNG, 970530-990420, HD (concurrent service) RA, 990421-020730, HD RA, 020731-050628, HD RA, 050629-070615, HD k. Highest Grade Achieved: E-8 l. Military Occupational Specialty: 38B1P, Civil Affairs Specialist m. GT Score: 115 n. Education: HS Graduate o. Overseas Service: Korea, SWA, Ecuador, Honduras, Columbia Bolivia p. Combat Service: Iraq (070331-070905) q. Decorations/Awards: BSM, MSM-2, ARCOM-5, AAM-5, JMUC AGCM-4, GWOTEM, GWOTSM, KDSM ICM-CS, NPDR, ASR, OSR, PRPUC r. Administrative Separation Board: No s. Performance Ratings: Yes t. Counseling Statements: No u. Prior Board Review: Yes SUMMARY OF SERVICE: The applicant enlisted in the Army National Guard on 21 March 1996, for eight years. He was 17 years old at the time and a high school graduate. He enlisted in the Regular Army on 21 April 1999, for a period of 4 years. His last reenlistment was on 16 June 2007, for a period of 6 years, he was 29 years old at the time. He served in Iraq, earned a BSM, MSM, ARCOM, AAM, and a CAB. When his discharge proceedings were initiated, he was serving at Fort Bragg, North Carolina. SEPARATION FACTS AND CIRCUMSTANCES: 1. The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s digital signature. 2. The DD Form 214 indicates that on 28 September 2012, the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. Further, the DD Form 214 shows a Separation Code of KFS (i.e., in lieu of trial by court-martial) with a reentry eligibility (RE) code of 4. 3. The applicant’s available record does not show any record of actions under the UCMJ or unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. The record contains eleven successful/among the best NCO Evaluation Reports covering the periods of 1 June 2001 through 31 October 2011. 2. The record does not contain any counseling statements. EVIDENCE SUBMITTED BY THE APPLICANT: 1. The applicant provided an online application, dated 12 August 2014, a DD Form 214 covering the period of service under review, along with the following documents: a. Two Memorandums for Record, dated 29 July 2005, Gryphon Group Vice President Administration, states the applicant met the minimum federal law enforcement standards of training for the tactical deployment of Oleoresin Capsicum Spray and the X-26 Electromuscular Disruption Device (Air Taser). b. Eleven NCOERs, dated between June 2001 and October 2011, reflect stellar performance as a noncommissioned officer. c. Documents from his Army Human Resource Record (AMHRR), consisting of promotion orders; awards and decorations; four DA Forms 1059 (Service School Academic Evaluation Report); certificates of achievement, training, appreciation, and completion; and, four discharge certificates. 2. Seven character statements, dated between 1 August 2012 and 6 September 2012, authored by personnel that worked with the applicant in a military capacity. Statements reflect the applicant’s loyalty, integrity, and strong work ethics. In addition, statements reflect the applicant is a leader that always treated Soldiers with dignity and respect, as well as placing their well-being as his top priority. POST-SERVICE ACTIVITY: None provided with the 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 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 discharge was carefully considered. However, after examining the applicant’s available military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge. 2. The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's digital signature. This document identifies the reason and characterization of the discharge. Barring evidence to the contrary, it appears all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 3. The applicant contends his discharge was inequitable because it was based on false allegations made by his former spouse. However, 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. The character of the applicant’s discharge is commensurate with his overall service record. 4. The applicant contends that he was discriminated by members of his chain of command; 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. 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. 5. The applicant's contentions about not being informed of his case being forwarded to the Special Courts Martial until three days prior; thus, resulting in the applicant requesting a Chapter 10 In Lieu of Trial by Court-Martial were carefully considered. However, there is insufficient evidence available in the official record to make a determination the validity of the applicant’s contentions. There is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted. The applicant’s statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. 6. The applicant requests his records and past military performance be reviewed in order upgrade his discharge to honorable. The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceedings 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 because the specific charges and specifications are not in the available records. 7. The third party statements provided with the application speak highly of the applicant’s performance. They all recognize his good conduct after leaving the Army; however, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant’s chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. 8. Therefore, based on the available evidence and the presumption of government regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 21 October 2014 Location: Washington, DC Did the Applicant Testify? No Counsel: None Witnesses/Observers: Yes DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional documents: Character letters – 4 pages In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing. 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) AR20140013852 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1