Applicant Name:  ?????

Application Receipt Date: 071019	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: See DD Form 293 and attached documents submitted by the applicant.

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: 041026
Discharge Received: 			   Date: 050124   Chapter: 14       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKQ   Unit/Location: 204th MP Co, Fort Polk, LA 71459 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 040826, wrongfully have sexual intercourse with SPC MC, a woman not his wife between (040301-040721), reduction to E-2, forfeiture of $668 x 2 (suspended), extra duty for 45 days (FG).

040220, failed to obey a lawful general regulation, by wrongfully having an inappropriate relationship with a PFC, reduction to E-4, forfeiture of $946 x 2, extra duty and restriction for 45 days (FG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 020125    Current ENL Term: 3 Years  ?????
Current ENL Service: 	02  Yrs, 11 Mos, 20 Days ?????
Total Service:  		08  Yrs, 05 Mos, 11 Days ?????
Previous Discharges: 	RA-960814-991128/HD
                                       RA-991129-020124/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 31B10 Military Police   GT: 108   EDU: HS Grad   Overseas: Korea/Hawaii/Southwest Asia   Combat: Iraq (030925-040325)
Decorations/Awards: ARCOM, AAM-3, AGCM-2, NDSM, GWOTEM, GWOTSM, KDSM, ASR, OSR

V.  Post-Discharge Activity
City, State:  Traverse City, MI
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 26 October 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, AR 635-200, by reason of misconduct-commission of a serious offense for receiving a Field Grade Article 15 (040826), wrongfully had sexual intercourse with a woman not his wife and received a  Field Grade Article 15 (040220), and wrongfully had an inappropriate relationship with a junior enlisted Soldier, with an under other than honorable conditions discharge.  He was advised of his rights.  The applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board, and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge. The senior commander reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.  On 4 January 2005, the applicant was notified to appear before an administrative separation board and advised of his rights. On 19 January 2005, the administrative separation board convened.  The applicant appeared with counsel.  On 19 January 2005, the board recommended that the applicant be discharged with issuance of a character of service of general, under honorable conditions. On 21 January 2005, again the applicant consulted with legal counsel, was advised of the impact of the discharge action, and with the understanding that due to a fatal flaw in the first administrative separation board he was entitled to have his case reconsidered by an administrative separation board.  The applicant voluntarily waived reconsideration of his case by administrative separation board, contingent upon him receiving a characterization of service of no less favorable than honorable.  On 21 January 2005, the separation authority  after careful consideration of the board proceedings and findings, disapproved the recommendation of the board in part.  The separation authority waived further rehabilitative efforts and directed that the applicant be discharged with an honorable characterization of service.

       b.  Legal Basis for Separation:  
       Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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, but a general discharge 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 and the issue he submitted, the analyst found no mitigating factors that would merit a change to the applicant's narrative reason for discharge.  The applicant was discharged for misconduct-commission of a serious offense under the provisions of Chapter 14, AR 635-200.  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.  Furthermore, the analyst noted the applicant's issue; however, the narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of paragraph 14-12c, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct" and the separation code is "JKQ."  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 and separation code, entered in block 26 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.  Additionally, at the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of “4.”  An RE code of “4” can not be waived and the applicant is no longer eligible for reenlistment.  In view of the foregoing, the analyst determined that the narrative reason for discharge was both proper and equitable and recommends to the Board that relief be denied.
       
       The analyst noted that on the applicant's DD Form 214, block 27 shows the reentry (RE) code as "4."  However, AR 601-210, Separation Program Designator (SPD) reentry eligibility (RE) Codes cross reference table dated 15 June 2006, list the SPD code as "JKQ" with a corresponding RE code of "3."  The analyst recomends to the Board that an administrative change be made to the applicant's DD Form 214, block 27 to show; "RE-3." 
       
       
       
       
       
       

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 17 September 2008         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: NA

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 voted to administratively change the reentry eligibility (RE) code on the applicant's DD Form 214 to "3."  Except for the foregoing modification to the reentry eligibility (RE) code, 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 0
Reason -     Change 0    No change 5
(Board member names available upon request)
								         EDGAR J. YANGER			 
Issue a new DD Form 214  					         Colonel, U.S. Army
Change Characterization to: 			         President, Army Discharge Review Board 
Change Reason to:  
Other: NA										
RE Code: 									 
Grade Restoration:   No   Yes   Grade: None 
       	
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20070014768
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