1. Applicant's Name: a. Application Date: 3 February 2017 b. Date Received: 3 February 2017 c. Counsel: 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests to upgrade her under other than honorable conditions discharge to honorable and to change the narrative reason for her discharge. The counsel on behalf of the applicant states, in pertinent part and in effect, the applicant served faithfully and honorably prior to encountering extremely severe family and personal problems, which resulted in her violating Article 86, UCMJ, being absent without leave that led to her discharge. Her discharge was inequitable because: her severe family and personal problems concerning the welfare of her children affected her ability to serve satisfactorily as a parent and Soldier; her status as a new Soldier and a mother of three who had not completed her AIT, deprived her of the experience, ability to adjust to military service, and total capabilities as a Soldier necessary to make decisions when the welfare of her children was a risk; due to arbitrary and capricious actions by her command in failing to process her for an entry-level separation or an involuntary separation due to parenthood and/or hardship discharge; due to arbitrary and capricious actions in enlisting her even though she had three dependents, which violated the Basic Eligibility Criteria for enlistment; and due to arbitrary and capricious actions by individual with authority as the commanding officer's report prepared at the time of the applicant's discharge was deficient. Her outstanding post-service conduct provides a more thorough understanding of her performance during the period of service that is currently under review. Her enlistment was improper because she was enlisted even though she had three dependents, which as a violation of the Basic Eligibility Criteria for enlistment. Her discharge was improper because of an error of fact, law, procedure, or discretion existed associated with the discharge at the time of issuance because the commander's report was deficient, and her rights were prejudiced thereby. Since her discharge, she led a life of outstanding post-service conduct while raising her children well and in a safe environment; she found and operated a licensed day care center for seven years until her daughter was diagnosed with cancer; she returned to school to obtain a nursing degree where she was recognized for her academic achievements; she is currently employed as a licensed practical nurse; and she is continuing her education towards becoming a registered nurse. She expressed regret and shame for violating Article 86, UCMJ. An upgrade would help overcome the dishonor she feels. In a personal appearance hearing conducted at Arlington, VA on 18 September 2017, and by a 5-0 vote, the Board determined the discharge was too harsh based on the arbitrary and capricious actions of the command, matters surrounding the AWOL, and circumstances surrounding the discharge (i.e. severe family matters) and as a result it is now inequitable. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority. Further, the Board voted to change the reentry eligibility (RE) code to 1. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: In Lieu of Trial by Court-Martial / AR 635-200, Chapter 10 / KFS / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 5 February 2002 c. Separation Facts: (1) DD Form 458 (Charge Sheet): On 6 July 2001, the following charge was preferred, with recommendations to refer to trial by a special court-martial empowered to adjudge a bad conduct discharge: Charge: Violation of Article 86, UCMJ, for absenting herself from her unit without authority on 21 May 2001, until 22 June 2001. (2) Legal Consultation Date: 6 July 2001 (3) Basis for Separation: Pursuant to the applicant's request for discharge under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial (4) Recommended Characterization: Under Other Than Honorable Conditions (5) Separation Decision Date / Characterization: 25 January 2002 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 15 November 2000 / 4 years b. Age at Enlistment / Education / GT Score: 24 / GED / 99 c. Highest Grade Achieved / MOS / Total Service: E-1 / None / 1 year, 1 month, 14 days d. Prior Service / Characterizations: None / NA e. Overseas Service / Combat Service: None / None f. Awards and Decorations: None g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Report of Return of Absentee, dated 27 June 2001, indicates the applicant surrendered to military authorities on 27 June 2001. Charge Sheet described at the preceding paragraph 3c(1). Discharge Orders, dated 4 February 2002. i. Lost Time / Mode of Return: 37 days (AWOL: 21 May 2001 to 26 June 2001) / Surrendered to military authorities j. Diagnosed PTSD / TBI / Behavioral Health: None 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293 (Application for the Review of Discharge), dated 3 February 2017, with attorney-authored petition; DD Form 214; and list of documents Exhibits 1 through 20, submitted as evidence in support of applicant's request. 6. POST SERVICE ACCOMPLISHMENTS: The counsel on behalf of the applicant states, in effect, that since her discharge, she has led a life of outstanding post-service conduct while raising her children well and in a safe environment; she found and operated a licensed day care center for seven years until her daughter was diagnosed with cancer; she returned to school to obtain a nursing degree where she was recognized for her academic achievements; she is currently employed as a licensed practical nurse; and she is continuing her education towards becoming a registered nurse. 7. REGULATORY CITATION(S): 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. AR 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 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. 8. DISCUSSION OF FACT(S): The applicant requests to upgrade her under other than honorable conditions discharge to honorable and to change the narrative reason for her discharge. The applicant's available record of service, and the issues and documents submitted with her application were carefully reviewed. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The applicant, in consultation with legal counsel 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, and she indicated she understood she could receive an under other than honorable conditions discharge and that the discharge would have a significant effect on eligibility for veteran's benefits. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The under other than honorable conditions discharge received by the applicant was normal and appropriate under the regulatory guidance. The 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. The applicant contends she is entitled to an upgrade of her discharge because of mitigating circumstances which contributed to her misconduct. Specifically, encountering an extreme severe family and personal family issues at home resulted in her discharge. While the applicant may believe her family issues were the underlying cause of her misconduct, the record of evidence does not demonstrate that she sought relief through her command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other resources available to all Soldiers. The applicant's numerous contentions, including the command's arbitrary and capricious actions, causing her discharge to be inequitable 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 her issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that she may have been unjustly discharged. The applicant's statements alone do not overcome the government's presumption of regularity and no additional corroborating and supporting documentation or further sufficient evidence has been provided with the request for an upgrade of the discharge and to change the narrative reason for her discharge. The third party statements provided with the application speak highly of the applicant's character and performance. They all recognize her 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. In consideration of the applicant's post-service accomplishments, the Board can find that her accomplishments were or were not sufficiently mitigating to warrant an upgrade of her characterization of service. The Army Discharge Review Board is authorized to consider post-service factors in the re- characterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character. The applicant requests to change the reason for her separation and its corresponding codes; however, the narrative reason for her separation is governed by specific directives. The narrative reason specified by AR 635-5-1 for a discharge under Chapter 10 is "In Lieu of Trial by Court-Martial," and the separation code is KFS. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. Further, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table, the applicant was appropriately assigned an RE code of 4. An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): Court papers - 4 pages b. The applicant presented no additional contentions. c. Witness(es) / Observer(s): 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 18 September 2017, and by a 5-0 vote, the Board determined the discharge was too harsh based on the arbitrary and capricious actions of the command, matters surrounding the AWOL, and circumstances surrounding the discharge (i.e. severe family matters) and as a result it is now inequitable. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority. Further, the Board voted to change the reentry eligibility (RE) code to 1. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: Honorable c. Change Reason to: Secretarial Authority d. Change Authority to: AR 635-200, Chapter 5-3 e. Change SPD/RE Code to: Change SPD to JFF/ Change to RE code to 1 f. Restore Grade to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20170001613 6