IN THE CASE OF:  	Mr. 

      BOARD DATE:  	12 April 2013

      CASE NUMBER:  	AR20120019085
___________________________________________________________________________

Board Determination and Directed Action

1.  After carefully examining the applicant's record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the discharge to be both proper and equitable and voted to deny relief.  

2.  However, notwithstanding the propriety of the applicant’s discharge, the Board found that the applicant’s DD Form 214, block 27 contains the erroneous reentry code of 4.    

3.  In view of the error, the Board directed an administrative correction to block 27 to read 
RE-3, as required by Army Regulations.  






      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests an upgrade of his discharge from general, under honorable conditions to honorable.

2.  The applicant states, in effect, he was discharged for being accused of using marijuana along with several other Soldiers.  He has never been in trouble with the law besides a few speeding tickets.  It is hard to pay for college and he would like to have another chance.  He desires to reenlist in the Marines or the Navy.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		10 October 2012
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			8 October 2009
d. Reason/Authority/SPD/RE Code:	Misconduct , AR 635-200, 14-12c, JKQ, RE-4
e. Unit of assignment:			C Co, 305th Military Intelligence Bn, Fort Huachuca, 						AZ  
f. Current Enlistment Date/Term:	25 February 2009, 4 years, 29 weeks 
g. Current Enlistment Service:	0 years, 7 months, 14 days
h. Total Service:			0 years, 7 months, 14 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	None
m. GT Score:				103
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, ASR,	
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None		
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 25 February 2009, for a period of 4 years, 29 weeks.  He was 19 years old at the time of entry and a high school graduate.  He was serving at Fort Huachuca, AZ, when his discharge was initiated.  There is no evidence of personally earned awards or combat service in the applicant’s AMHRR.





SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 15 September 2009, 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-commission of a serious offense for the following offenses:

         a. wrongfully using marijuana (090522-090617) 
         b. making a false official statement to a noncommissioned officer
         c. dereliction in the performance of his duties on divers occasions
         d. failing to be at his appointed place of duty  

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge.

3.  On 21 September 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board (although he was not entitled to a board)and did not submit a statement was on 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 with a general, under honorable conditions discharge.  

4.  On 1 October 2009, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The applicant’s record does not show any record of unauthorized absences or lost time.

6.  The applicant was discharged from the Army on 8 October 2009, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and an RE code of 4.

7.  The record shows that the applicant's DD Form 214 block 27, reentry eligibility (RE) code reads "4."  According to AR 635-5-1, Separation Program Designator (SPD)/Reentry (RE) Codes Cross-Reference Table, requires a reentry eligibility (RE) code of "3."   

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record does not contain any actions under Article 15 of the Uniform Code of Military Justice.  

2.  Four negative counseling statements that were done between 3 June 2009 and 7 July 2009, for physical security violations, violation of company SOP, failing to secure valuable items in the barracks, lying to a noncommissioned officer and failing to report.

3.  A CID Report of Investigation dated 28 June 2008 indicates the applicant was the subject of an investigation for wrongful use of marijuana.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, dated 31 January 2012.

POST-SERVICE ACTIVITY: 

The applicant did not provide any.

REGULATORY AUTHORITY:

1.  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.   

2.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

3.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of her discharge was carefully considered.  However, after examining the applicant’s record of service, his military records, and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.

2.  The record confirms 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.  It brought discredit on the Army, and was prejudicial to good order and discipline.  By the misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  

3.  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.

4.  The applicant contends he was discharged for being accused of using of marijuana along with several other Soldiers.  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 this contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged.   

5.  Further, a review of the service record does not reveal any evidence of arbitrary or capricious actions by the applicant’s command.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

6.  The applicant further contends he has never been in trouble with the law besides a few speeding tickets.  The applicant is to be commended for his efforts.  However, this contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued.  

7.  The applicant also contends it is hard to pay for college and he would like to have another chance.  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. 

8.  The applicant desires to reenlist in the Marines or the Navy.  Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on AR 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  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. 
     
9.  The records show the proper discharge and separation authority procedures were followed in this case. 



10.  The service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4.  The discharge packet confirms the separation authority approved the discharge by reason of misconduct (serious offense).  AR 635-5-1, (Separation Program Designator Codes) and Cross Reference Table shows that a Soldier processed for misconduct (serious offense) will be assigned an SPD Code of JKQ and an RE Code of 3.  

11.  In view of the foregoing and notwithstanding the propriety of the discharge, recommend the Board change block 27, reentry code to 3.  Except for the modification as stated above the discharge was both proper and equitable.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review        Date:  12 April 2013          Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: NA

Witnesses/Observers: NA 

Board Vote:
Character Change:  0	No Change:  5
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	No Change
Change Reason to:		No Change
Change Authority for Separation:	N/A
Change RE Code to:	RE-3
Grade Restoration to:	N/A
Other:	None








Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions



ADRB Case Report and Directive (cont)		AR20120019085



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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