IN THE CASE OF:	  

		BOARD DATE:  8 January 2013

		DOCKET NUMBER:  AR20120009372 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his under honorable conditions (general) discharge to a fully honorable discharge and correction of the narrative reason for separation.

2.  The applicant states:

* He was given improper representation to build his case and appeal the decision made
* His former spouse committed infidelity and he tried his best to repair the relationship
* He sought counseling through the chaplain and other resources
* His former spouse committed verbal, emotional, and physical abuse
* He was slapped around by her and swore never to lay a hand on a woman except in restraint; he neither hurt her nor used excessive force
* She was unfaithful to him and went around trying to remove him from her life
* She popped pain pills intentionally; she enjoyed pain and suffered bruises due to sexual sadism
* He is not a violent man; he is a family man and he cared too much for her
* His chain of command found a loophole to discharge him and he now can't join the U.S. Army Reserve

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a statement from his former spouse. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 24 July 1999 and he held military occupational specialty 25P (Microwave System Operator/Maintainer).  He served through two reenlistments and he attained the rank/grade of sergeant (SGT)/E-5.

2.  His records also show he was awarded or authorized the Army Achievement Medal (4th Award), Army Good Conduct Medal (2nd Award), National Defense Service Medal, Global War on Terrorism Service Medal, Korea Defense Service Medal, and Overseas Service Ribbon.

3.  On 26 October 2007, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for committing an assault upon his wife.  His punishment consisted of a reduction from SGT/E-5 to specialist/E-4, a suspended forfeiture of pay, and extra duty/restriction.

4.  The initial separation notification memorandum and acknowledgement statements are not available; however, the remainder of his separation packet is available.  

5.  On 3 December 2007, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12(c) for misconduct - commission of a serious offense.  Specifically, the immediate commander stated that the applicant unlawfully assaulted his wife on or about 19 September 2007 by grabbing her by the throat and pushing her and for failing to obey a lawful order on or about 27 September 2007.  

6.  On 7 December 2007, the applicant’s intermediate commander recommended approval of the applicant’s discharge in accordance with paragraph 14-12(c) of Army Regulation 635-200 with an under other than honorable conditions character of service.

7.  On 12 December 2007, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of misconduct - commission of a serious offense and directed the applicant be given an under honorable conditions discharge (general).  On 7 January 2008, the applicant was accordingly discharged.

8.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200 by reason of misconduct with a character of service of under honorable conditions.  This form further confirms he completed 8 years, 5 months, and 14 days of creditable active service.  This form shows in:

* Item 25 (Separation Authority) – AR (Army Regulation) 635-200, Paragraph 14-12c
* Item 26 (Separation Code) – "JKQ"
* Item 27 (Reentry (RE) Code) – "RE-3"
* Item 28 – (Narrative Reason for Separation) - "Misconduct - Serious Offense"

9.  On 15 April 2010, after careful consideration of his case, the Army Discharge Review Board (ADRB) determined he was properly and equitably discharged.  The ADRB voted unanimously to deny his request for an upgrade. 

10.  He submitted a statement from his former spouse wherein she stated that she and the applicant got into an argument and they pushed each other but he never hit her.  When she went to the police station, it was for the purpose of having him removed from the home.  She was advised by two of the noncommissioned officers to press charges and get a protective order.  She did neither because she did not want to harm him.  She believes he was set up to lose rank and should not have been treated this way.  He is a good person and he was a good SGT.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included 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 for a Soldier discharged for patterns of misconduct.

	b.  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.
12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JKQ" SPD code is the correct code for Soldiers separating under chapter 14-12c of Army Regulation 635-200 by reason of misconduct - commission of a serious offense.

13.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and U.S. Army Reserve.  It stated that individuals would be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty.  Table 3-1 included a list of Regular Army RE codes.

* An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met
* An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted

14.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The table in effect at the time of his discharge shows that SPD code "JKQ" has a corresponding RE code "3."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed a serious offense. Accordingly, his commander initiated separation action against him.  All requirements of law and regulation were presumably met and the rights of the applicant appear to have been fully protected throughout the separation process. The evidence of record further shows the applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. 

2.  The statement his former spouse submitted was carefully considered.  However, it is insufficient to support his contention that he was wrongfully or unjustly discharged.  The misconduct of assault and disobeying a lawful order show the quality of his service was diminished below that meriting an honorable discharge.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for upgrading his discharge to an honorable discharge.

4.  His separation code and narrative reason for separation were assigned based on the fact that he was discharged under the provisions of chapter 14-12c of Army Regulation 635-200 due to his misconduct - commission of a serious offense.  Absent the commission of this offense, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his serious offense.  The only valid narrative reason for separation permitted under that paragraph is "misconduct - serious offense" and the appropriate separation code associated with this discharge is "JKQ" which is correctly shown on his DD Form 214.  

5.  An SPD Code of "JKQ" has a corresponding RE Code of 3.  This code applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable; they are ineligible unless a waiver is granted.  The ABCMR does not correct records for the purpose of establishing entitlements to other programs or benefits.  The applicant is advised that if he desires to join the military, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case

are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  X ______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120009372



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ABCMR Record of Proceedings (cont)                                         AR20120009372



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