Applicant Name:  ?????

Application Receipt Date: 2011/10/21	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states:  “Was Discharged for Patterns of Misconduct Ch 14-12C (Serious Offense) SPN JKQ.  My Counseling and Article15 was for Chapter 14-12B disrespect to a Commissioned Officer my Company Commander for not addressing him as SIR and supposedly saying If we weren’t in the Army I would be in your face.  This does not constitute a serious offense according to the MCM a Serious offense a “serious offense” is any offense punishable under the authority of the code by death or by confinement for a term exceeding I year.  According to the UCMJ Article89 Disrespect toward a superior commissioned officer Maximum punishment is Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year again this is NOT labeled as a confinement for a term exceeding 1 year According to MCM Regulations which is LAW.  According to AR 635-200 Patterns of Misconduct ch 14-12c serious offense states specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the MCM.(1)absentee returned to military control from a status of absent without leave or desertion.  (a)First time drug offenders (b) Second time drug offenders and (c) Medically diagnosed drug dependent soldiers.  In which I was labeled NONE OF THE ABOVE.  I personally believe that my DD214 was NOT deserving of a Serious Offense and SPN code JKQ.  l also believe this was Illegally and Intentionally done by my Command Group.”

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: NIF
Discharge Received: 			   Date: 111004   Chapter: 14-12c    AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: B Co, 209th Avn Spt Bn, Schofield Bks, HI 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 110302, disrespectful to a commissioned officer (100830), reduction to E-4, forfeiture of $1,162 per month for two months (suspended), and 45 days of extra duty (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  35
Current ENL Date: 070906    Current ENL Term: 6 Years  ?????
Current ENL Service: 	04 Yrs, 00 Mos, 28 Days ?????
Total Service:  		06 Yrs, 09 Mos, 05 Days ?????
Previous Discharges: 	?????
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 15J20/OH-58 Armament/Electronics Rpr   GT: NIF   EDU: HS Grad   Overseas: SWA, Hawaii   Combat: Iraq x 2 (060718-070923 and 090908-100801)
Decorations/Awards: ARCOM-2, AGCM-2, ICM-3, GWOTSM, NCOPDR, ASR, OSR-4, MUC

V.  Post-Discharge Activity
City, State:  Goose Creek, SC
Post Service Accomplishments: None listed

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  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 signature.  
       
       The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c by reason of misconduct (serious offense), with a characterization of service of general, under 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."   

       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, the issue and documents submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant’s discharge.  
       
       The applicant contends that his offenses were not serious enough and he was unfailrly discharged.  However, the applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge and the analyst presumed government regularity in the discharge process.  
       
       Further, 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.   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.   
       
       The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c by reason of misconduct (serious offense), with a characterization of service of general under 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 would have been protected throughout the separation process.  
       
       Therefore, based on the available evidence, the analyst presumes government regularity in the discharge process and concludes that it appears 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: 6 April 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: Timeline of events, Article 15, counseling statement, copy of congressional correspondence.

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 the applicant’s service and the narrative reason for the discharge were both proper and equitable and voted to deny relief.  
        
IX.  Board Decision						
Board Vote:
Character - Change 0    No change 5
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 AR20110021174
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