Applicant Name:  ?????

Application Receipt Date: 2012/01/09	Prior Review:     Prior Review Date: Records Review (100514)

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states through legal counsel: " Mr. K was good Soldier.  He was not perfect, but he was good at his job and committed to his country.  He did that which was expected of him with only few exceptions. Soldiers with DUI convictions routinely receive honorable discharges, yet because of a mental health condition the Army tried to ignore, Mr. K’s service was characterized more negatively than someone with a DUI.  For both purposes of propriety and equity, we respectfiilly request the Honorable Board upgrade Mr. K’s service characterization to “honorable,” amend his reason for discharge to either completion of term of service or secretarial authority, and award him a reentry code of 1.  We trust the deliberate manner in which we are confident the Board will evaluate this request."

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: 	   Date: 070505
Discharge Received: 			   Date: 070402   Chapter: 14-12b       AR: 635-200
Reason: Pattern of Misconduct	   RE:     SPD: JKA   Unit/Location: A Co, 1st STB, 1st BCT, Fort Hood, TX 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 060928, Disrespectful towards a commissioned officer (060924) and dereliction in the performance of his duties (060923), reduction to E3 (suspended); forfeiture of $225.00 per month for one month; and a written reprimand, (CG).

070130, Suspension of punishment of reduction to E3 was vacated for being disrespectful towards a noncommissioned officer (070129).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 030903    Current ENL Term: 04 Years  ?????
Current ENL Service: 	03 Yrs, 07  Mos, 00  Days ?????
Total Service:  		03 Yrs, 07  Mos, 00  Days ?????
Previous Discharges: 	None
Highest Grade: E4		Performance Ratings Available: Yes    No 
MOS: 96b10/Intelligence Analyst   GT: 126   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq (051213-061202)
Decorations/Awards: ARCOM, AGCM, NDSM, ICM, GWOTSM, ASR, OSR

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: Associates Degree from WHATCOM Community College with a GPA of 3.8.



VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 2 March 2007, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct for disrepecting a Field Grade Officer, being derelict in the performance of his duties, disrespecting a noncommissioned officer, and for leaving his appointed place of duty, with a honorable discharge.  He was advised of his rights.  
       
       On 2 March 2007, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a honorable discharge.  
       
       On 28 March 2007, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions. 

       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 military records during the period of enlistment under review, the documents, and the issues he submitted through legal counsel, the analyst found no mitigating factors that would merit an upgrade of the applicant's discharge.  
       
       The applicant’s discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  By his misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  
       
       Furthermore, the analyst concluded that the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army.  Having examined all the circumstances, the analyst determined that the applicant’s numerous incidents of misconduct did indeed adversely affect the quality of service, brought discredit on the Army, and was prejudicial to good order and discipline.  These incidents of misconduct clearly diminished the quality of the applicant’s service below that meriting a fully honorable discharge.
       
       The narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 14, paragraph 14-12b, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," the separation code is "JKA", 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 the stress of being told he would be held past his separation dated and being diagnosed with a mental health disorder sent him over the edge.  However, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition like a personality or adjustment disorders solely to spare a Soldier who may have committed serious acts of misconduct.  
       
       While the applicant may believe stress was the underlying cause of his misconduct, the record of evidence does not demonstrate that he sought relief from stress through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  
       
       The applicant also contends that his leadership recommended he engage in additional minor misconduct and assured him they would seek an honorable service characterization.  The analyst noted the applicant's contention; 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 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 Article 15 and numerous negative counseling statements justify a pattern of misconduct.  The applicant’s statements alone do 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.  
       
       Furthermore, 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 analyst acknowledges the applicant’s in-service accomplishments and considered the quality of his service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the incidents of misconduct or by the multiple negative counseling statements, and the documented actions under Article 15 of the Uniformed Code of Military Justice.
       
       The analyst noted the applicant's issue about changing his reentry eligibility code to 1.  However, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “3.”  
       
       In view of the foregoing, the analyst determined that the characterization of service and reason for discharge to include the reentry eligibility code 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: 21 May 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: None 

Exhibits Submitted: DD Form 293, Certificate for award of the Army Commendation Medal and Good Conduct Medal, Affidavit, Memorandum in Support of Application (5 pages), Developmental Counseling Forms (3), Record of Proceedings Under Article 15, Memorandum, dated 9 November 2006, excerpts from a book (7 pages), Discharge packet (7 pages), DD Form 214 for the period of service under review.

The applicant submitted 3 additionally documents in support of his case: Certificate from WHATCOM Community College, Letter from Eastern Mennonite University, dated 10 May 2012, and a Letter from the Department of Veterans Affairs, dated 4 January 2011.

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 characterization of service was too harsh, and as result it is inequitable.  The Board found that the overall length and quality of the applicant's service to include his combat service, his post-service accomplishment, and the circumstances surrounding the discharge (i.e. documented medical issues and the Commander recommended him for a honorable discharge), mitigated the discrediting entries in his service record.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to fully honorable.  However, the Board determined that the reason for discharge was both proper and equitable and voted not to change it.  
        
IX.  Board Decision						
Board Vote:
Character - Change 4    No change 1
Reason -     Change 0    No change 5
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: NA
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:




EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder









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 AR20120000811
______________________________________________________________________________


Page 4 of 4 pages