Applicant Name:  

Application Receipt Date: 2012/04/19	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that his unit falsified documents and/or statements justifying a general, under honorable conditions discharge for reasons to believe that was "untruthful sworn statements and/or documents."  He would like his discharge code changed to a nondisciplinary code to further his education.

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: 111108
Discharge Received: 			   Date: 111129   Chapter: 14-12c    AR: 635-200
Reason: Misconduct (Serious Misconduct)	   RE:     SPD: JKQ   Unit/Location: HHT, 1st Squadron, 1st Cavalry Regiment, 2d Heavy Brigade Combat Team, 1AD, Fort Bliss, TX 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 110614, failed to go to his appointed place of duty x 2 (110224), (110223); disrespectful towards an NCO x 2 (110325), reduced to E-3; forfeiture of $975 ($400 suspended); 45-day extra duty; oral reprimand, (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 080310    Current ENL Term: 04 Years  ?????
Current ENL Service: 	03 Yrs, 08 Mos, 20 Days ?????
Total Service:  		05 Yrs, 03 Mos, 29 Days ?????
Previous Discharges: 	RA (060801-080309) / HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 25U (Signal Support System Spec)   GT: 114   EDU: GED   Overseas: Korea   Combat: None
Decorations/Awards: AAM; AGCM; NDSM; GWOTSM; KDSM; ASR; OSR

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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 7 November 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct—for failing to obey NCO orders (111012); made a false official statement to an NCO (110930); failing to report to his appointed place of duty x 3 (110224), (110721), (110725); and disrespectful towards an NCO (110325), with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 7 November 2011, the applicant consulted 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 action and recommended approval of the separation with a general, under honorable conditions discharge.  
       
       On 10 November 2011, the separation authority waived further rehabilitation and directed the applicant’s discharge 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 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 being absent 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, and 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 analyst determined that 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 the misconduct, the applicant diminished the quality of the former Soldier’s 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.  
       
       The applicant contends that his discharge was unjust because his unit falsified documents and/or statements to justify his general, under honorable conditions discharge.  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 official documentary evidence to support the contention that he was unjustly discriminated.   In fact, the applicant’s Articles 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 official documentation or further evidence in support of his request for an upgrade of his discharge.   
       
       The analyst noted the applicant's issues about his desire to have the benefits of the GI Bill.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.
       
       The analyst also noted the applicant's issue about his desire for changes to his separation codes.  Regarding the separation code that corresponds with the narrative reason for his discharge, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," 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.  Regarding the reentry (RE) code, Soldiers being processed for separation are assigned RE codes based on their service records or the reason for discharge.  The applicant was appropriately assigned an RE code of 3.  The analyst found no bases upon which to recommend a change to the applicant’s reentry code.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters 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 if appropriate.  
       
       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.  
       Therefore, the analyst determined 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: 14 September 2012         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated 17 April 2012; Developmental Counseling Forms x 3, dated 30 September 2011 x 2, 1 October 2011; Sworn Statements x 3, dated 1 October 2011, 2 October 2011 x 2; pictures depicting cell phone text messages x 2 pages; DD Form 214 for service under current review.

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: NA
Other: NA
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 AR20120008369
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