IN THE CASE OF: Mr. BOARD DATE: 10 December 2014 CASE NUMBER: AR20140017189 ___________________________________________________________________________ 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 under other than honorable conditions discharge to either honorable or general, under honorable conditions and a change to the narrative reason for discharge. 2. The applicant states, in effect, when he entered the military he was granted a waiver for Tourette’s Syndrome because it was believed to be in remission. He states after arriving at Fort Stewart, Georgia, his began to experience Tourette’s due to the high level of physical stress and allergens he encountered. He went to sick call in place of PT and normally reported to work afterwards. He contends he was working as the S2/S3 NCOIC as a Private (E-2). He admits after review of his medical records, he attended sick call far too often. He states that his new commander did not believe he had Tourette’s and directly told him that he would do everything to separate him from the military before he would receive a medical discharge. He states that several doctors claimed he did not have the syndrome and one civilian specialist verified he did have Tourette’s. He states his commander used a technicality to justify placing him in the brig, claiming he had not notified his chain of command of his attendance at sick call. He states he spent six months in the brig when he was approached with the option of staying in the brig for another six months due to the backlog in the judicial system or sign a release and go home with an other than honorable conditions discharge. He states he had no idea of the impact of his decision. He chose the option to go home even though he had not seen the charges against him. He states 13 years after being discharged, he has been refused VA benefits and is unable to obtain productive employment. He states he was not a perfect Soldier but he believes the punishment was too severe just because he had a disability. He is requesting a comparative review of his medical records, both military and civilian, his awards and service record. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 29 September 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 16 April 2002 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, 3rd Soldier Support Battalion, Fort Stewart, GA f. Current Enlistment Date/Term: 19 November 1999/4 years g. Current Enlistment Service: 2 years, 1 month, 20 days h. Total Service: 2 years, 1 month, 20 days i. Time Lost: 97 days (includes 90 days confinement) j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 75H10, Personnel Services Specialist m. GT Score: 107 n. Education: GED o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: ASR r. Administrative Separation Board: NA s. Performance Ratings: NA t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 19 November 1999, for a period of 4 years. He was 20 years old at the time of entry and had a General Equivalency Diploma (GED). His record is void of any significant acts of valor and achievement. He completed 2 years, 1 month, and 20 days of creditable active duty service. When his discharge proceedings were initiated, he was serving at Fort Stewart, Georgia. SEPARATION FACTS AND CIRCUMSTANCES: 1. The applicant’s DD 214 reflects accrual of 7 days of time lost. He was reported AWOL on several occasions during the period of 22 August 2001 through 19 December 2001. Also reflected is 90 days of confinement from 3 January 2002 until 3 April 2002. 2. On 5 January 2002, a court-martial charge was preferred against the applicant specifically for: a. being AWOL (010822-010823, 011030-011031, 011115-011116, 011127-011128, 011210-011213, 011217-011219), b. failing to go at the times and dates prescribed to his appointed place of duty (010718, 010820, 011107, 011108, 011130 x 2, 011204 x 2, 011214), c. disobeying a lawful order from a NCO (011217), d. violating restriction (010725). 3. On 4 April 2002, 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 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 5 April 2002, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued a under other than honorable conditions discharge. 5. On 18 April 2002, the applicant was discharged accordingly. The DD Form 214 reflects he completed 2 years, 1 month and 20 days of creditable active military service after deduction of 97 days of time lost due to being AWOL and confined by military authorities. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A memorandum, dated 2 April 2002, reflects the applicant received a General Officer Memorandum of Reprimand (GOMOR) to be filed in his official military record. As a note, there is no evidence of the GOMOR in the applicant’s record. 2. DA Form 458 (Charge Sheet), dated 5 January 2002, reflects the applicant was charged with six specifications of being AWOL on several occasions from 22 August 2001 through 19 December 2001, one specification of failing to go at the times and dates prescribed to his appointed place of duty on several occasions, disobeying a lawful order, and violating restriction. 3. Several DA Forms 4187 (Personnel Actions) changing the applicant’s duty status from present for duty (PDY) to AWOL x 5, AWOL to PDY x 4, PDY to confined by military authorities, and confined by military authorities to PDY. 4. Special Court-Martial Order Number 16, dated 23 July 2002, dismissed the charges against the applicant due to the administrative discharge of the applicant under the provisions of Chapter 10, AR 635-200. 5. DD Form 215, dated 25 September 2002, changed the applicant’s discharge date from 18 April 2002 to read 16 April 2002, and the net active service period to read 2 years, 1 month, 18 days. This change reflects the 97 days of lost time due to being AWOL and confinement. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293 with a self-authored statement addressing his contentions, dated 2 September 2014, a DD Form 214, a personal job description from MAJ N, and a letter from Dr. P, dated 2 August 2001. POST-SERVICE ACTIVITY: The applicant did not provide any in support of his application. 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 his characterization and a change to the narrative reason was carefully considered. However, after examining the applicant’s record of service, the issues and documents 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. 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 desires a change in the reason for the discharge. However, 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. The regulation further stipulates that no deviation is authorized. 5. The applicant contends that a medical issue contributed to his frequent visits to sick call. However, the fact the applicant may have suffered from a medical condition while on active duty does not support a conclusion that this condition rendered the applicant unfit for further service at the time of his discharge processing. Further, the available record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication or would have warranted his separation processing through medical channels. 6. The applicant desires to use medical benefits through the Veterans Administration and obtain productive employment. However, eligibility for veteran’s benefits does not fall within the purview of the Army Discharge Review Board. Further, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 7. The applicant requests a comparative review of his medical records, both military and civilian, and his service record and awards. However, the applicant’s requests does not fall within the purview of this Board because it does not raise no matter of fact, law, procedure, or discretion related to the discharge process. 8. 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: 10 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) AR20140017189 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1