Applicant Name:  ?????

Application Receipt Date: 2011/12/27	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he would like his discharge upgraded to honorable in order to reenlist in the Army.  He contends his conviction was not based on the charges he was accused of.

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   None

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: NIF
Discharge Received: 			   Date: 101222   Chapter: 14-12c     AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: E Btry, 2nd Bn, 43rd ADA, Fort Bliss, TX 

Time Lost: None

Article 15s (Charges/Dates/Punishment): NIF

Courts-Martial (Charges/Dates/Punishment): NIF

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  24
Current ENL Date: 100114    Current ENL Term: 6 Years  ?????
Current ENL Service: 	0 Yrs, 11 Mos, 08 Days ?????
Total Service:  		7 Yrs, 01 Mos, 24 Days ?????
Previous Discharges: 	RA 031029-050728/HD
                                       RA 050729-080930/HD
                                       RA 081001-100113/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 14S10/Avenger Crewmember   GT: 94   EDU: HS Grad   Overseas: SWA   Combat: Iraq x 2 (050531-060425), (070717-080524)
Decorations/Awards: PH, ARCOM, AAM, AGCM, NDSM, ICM-CS, GWOTEM, GWOTSM, ASR, OSR

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None

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 the 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 under other than honorable conditions. 
       Additionally, the applicant provided copies of the unit commander's report and recommendation for separation under AR 635-200, Chapter 14-12c, however the documents are void of authentication and dates; therefore, they are not considered as official documents.  The only available evidence is the applicant's DD Form 214 that 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 that would merit an upgrade of the applicant’s discharge.  
       
       The applicant’s record is void of the specific facts and circumstances concerning the events that 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 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, AR 635-200, paragraph 14-12c 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 would have been protected throughout the separation process.  
       
       The applicant's contentions were carefully considered.  However, the analyst is unable to determine whether these contentions have merit because the facts and circumstances leading to the discharge are unknown.  There is insufficient evidence available in the official record to make a determination upon the applicant's quality of service.  Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted.  The applicant’s statements alone do not overcome the presumption of government regularity in this case and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge.  
       
       If a personal appearance hearing is desired, it is the applicant’s responsibility to meet the burden of proof since the evidence is not available in the official record.  The burden of proof remains with the applicant to provide the appropriate documents or other evidence (i.e., complete and signed discharge packet) sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.
       
       The analyst also noted the applicant's desire to reenlist.  However, if the applicant desires to reenlist, he should contact the local recruiter to determine his eligibility to reenlist.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes.
       
       Furthermore, the applicant contends that his discharge was unjust because he did not do what he was discharged for.  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 discriminated.  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.
       
       Therefore, based on the available evidence, the analyst presumes government regularity in the discharge process and concludes that it appears that 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 June 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293 dated, 19 December 2011, self authored statement dated, 19 December 2011, letter from Texas district attorney's office dated, 20 December 2011, noncommissioned officer evaluation report (NCOER) (081201-091130), permanent orders and award for purple heart dated, 9 January 2006, combat action badge orders dated, 27 February 2006 and a copy of his enlisted record brief (ERB).
































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						
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: No Change
Other: None
RE Code: 
Grade Restoration:   No   Yes   Grade: NA

XI.  Certification Signature
Approval Authority:




ARCHIE L. DAVIS III
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 AR20120000048
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