Applicant Name:  ?????

Application Receipt Date: 2010/12/16	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he requests an upgrade of his discharge to general, under honorable conditions and a change to the narrative reason for separation.  He contends that he was not afforded his right to an administrative separation board and he never waived it.  He further contends that the allegations against him were false and he should not have been discharged under any circumstances.  He also contends that he was mistreated while on administrative hold pending resolution of the matter. 

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	NIF   Date: NIF
Discharge Received: 			   Date: 091022   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: H Trp, 1-81st AR Bn, Fort Knox, KY 

Time Lost: AWOL for 5 days (090610-090614), 

Article 15s (Charges/Dates/Punishment): 090903, wrongfully withdraw monies from another Soldier's account in the amout of $2,141.00, which he kept all but $80 for himself (090511); reduction to E-1, forfeiture of $799 pay x 1 month, extra duty for 10 days and restriction for 10 days, (FG).  

090626, without authority, absented himself from his unit (AWOL) (90610-090614); reduction to E-2, forfeiture of $784 pay x 2 months, extra duty for 7 days and restriction for 7 days, (FG). 

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: 090203/OAD    Current ENL Term: 00 Years  16 Weeks
Current ENL Service: 	00  Yrs, 08 Mos, 15 Days ?????
Total Service:  		01  Yrs, 00 Mos, 04 Days ?????
Previous Discharges: 	ARNG-081014-090202/NA
                                         (Concurrent Service)
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: None   GT: 112   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: None

V.  Post-Discharge Activity
City, State:  Las Vegas, NV 
Post Service Accomplishments: None Listed




 


VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 10 September 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 625-200, by reason of misconduct-commission of a serious offense for wrongfully withdrawing monies from another Soldier's account in the amount of $2,141.00, which he kept all but $80 for himself (090511). On 28 September 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action; however, it appears that the applicant did not execute his election of rights.   
       
       The applicant’s record is void of the specific facts and circumstances concerning the events which led to the release from the Army and the analyst presumed government regularity in the discharge process.  However, the record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s digital signature.  The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct, with a characterization of service of under other than honorable conditions.  
       
       Furthermore, the DD Form 214 shows a Separation Code of JKQ (i.e., misconduct-serious offense, with a reentry eligibility (RE) code of "3."  On 22 October 2009, Orders 295-0175, DA, U.S. Army Installation Management Command, HQS, U.S. Army Garrison Command, Fort Knox, KY, released the applicant from active duty for training, discharged him from the reserve of the Army, and returned him to the Army National Guard, effective date:  22 October 2009.     

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate, however, a general, under honorable conditions or an honorable discharge may be granted.   

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s available military records during the period of enlistment under review, the issues and documents submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant’s discharge.  
       
       The applicant’s record is void of the specific facts and circumstances concerning the events which led to the former Soldier’s discharge from the Army.  However, the applicant’s record does contain 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 and the analyst presumed government regularity in the discharge process.  
       
       The DD Form 214, indicates the applicant was discharged under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct-serious offense, with a characterization of service of under other than honorable conditions.  Barring evidence to the contrary, the analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
       
       The applicant requested a change to the narrative reason for separation.  The narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 14, paragraph 14-12c, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," the separation code is "JKQ," and the reentry code is "RE 3."  
       
       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, separation code, entered in block 26, and RE Code, entered in block 27 of the form, will be entered 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.  
       
       The applicant contends that he was not afforded his right to an administrative separation board and he never waived it.  The evidence of record shows that on 10 September 2009, the unit commander notified the applicant of initiation of separation action.  The unit commander advised the applicant that he had 7 duty days from the time of notification to execute and return his election rights to him.  On 28 September 2009, the applicant consulted with legal counsel and still did not execute his election of rights, thereby waiving his right to an administrative separation board.
       
       The applicant further contends that the allegations against him were false and he should not have been discharged under any circumstances.  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 his issue.  
       
       There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that he was unjustly discharged.  In fact, the applicant’s two Articles 15 justify his misconduct-serious offense.  The applicant’s statement alone did not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence in support of his request for an upgrade of his discharge.  
       
       Further, the analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       The applicant also contends that he was mistreated while on administrative hold pending resolution of the matter.  Although the applicant alleges that he was mistreated during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.
       
       Furthermore, the analyst determined that the applicant’s Official Military Personnel File (OMPF) does not contain all the specific documents that would indicate the reason for the separation action from the United States Army.  If the applicant desires to appear before a personal appearance Board, the burden of proof remains with the former Soldier to provide the appropriate documents or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration.
       
       Therefore, based on the available evidence, the analyst presumes government regularity in the discharge process and concludes that based on the DD Form 214, the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief.

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 5 August 2011         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel:   [ redacted ]

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated (100610); DD Form 214, dated (091022); and two (2) FK Forms 9585-E (Notification Memoranda Requiring Admin Board Procedures), dated (090910), and (undated).





VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief.  
        
IX.  Board Decision						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 0    No change 5
Reason -     Change 0    No change 5
(Board member names available upon request)
								         EDGAR J. YANGER			 
								         Colonel, U.S. Army
X.  Board Action Directed					         President, Army Discharge Review Board
Issue a new DD Form 214  					
Change Characterization to: 			         
Change Reason to: No Change
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: None































Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 

ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20100029913
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