IN THE CASE OF:  

      BOARD DATE:  	6 May 2013

      CASE NUMBER:  	AR20120019485
___________________________________________________________________________

		Board Determination and Directed Action	

1.  After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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 characterization from under other than honorable conditions to honorable and a change to the narrative reason for the discharge.

2.  The applicant states, in effect, that he served over 15 years in the Army, with two tours in Korea, and a tour of combat duty in Iraq. While serving as a recruiter he was investigated for dating a woman he met on the weekend during his personal time.  Her mother knew he was dating her, as did the school that she attended.  The school did not have any problem with him dating her.  He later gave her a practice ASVAB in an attempt to convince her to join the Army, but found that she was disqualified from military service.  The command that he was part of was a very religious command and said that what he did was morally wrong, and labeled him a predator.  Although he was wrong for dating someone prior to his divorce being finalized, he feels that his command misstated many facts in order to discharge him, and feels that he did not deserve the discharge he received.  The woman he dated was not 17 years old which is illegal, but in fact was 18 years old.  He informed his chain of command of her age, and that she was never a prospect during the entire process of his Article 15, and his discharge, but was still labeled a predator.  He feels that he was unfairly discharged based off his command’s religious opinions, and not on the facts of his case.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:  		15 January 2012			
b. Discharge Received:		Under Other Than Honorable Conditions	
c. Date of Discharge:			14 March 2012		
d. Reason/Authority/SPD/RE Code:  Misconduct (Serious Offense), AR 635-200, 14-12c 							JKQ, RE-4   		
e. Unit of assignment:			Wilkes-Barre Recruiting Company, US Army 							Recruiting Battalion, Syracuse, NY			
f. Current Enlistment Date/Term:	22 June 2009, Indefinite
g. Current Enlistment Service:	2 years, 8 months, 22 days
h. Total Service:			15 years, 8 months 28 days (does not reflect period of 						delayed entry)
i. Time Lost:				None
j. Previous Discharges:		DEP  950623 - 960616, NA
						RA     960617 - 020611, HD
						RA     020612 - 060313, HD
						RA     060314 - 090621, HD
k. Highest Grade Achieved:		E-6
l. Military Occupational Specialty:	15U14, CH-47 Helicopter Repairer
m. GT Score:				113
n. Education:				HS Graduate
o. Overseas Service:			Korea
p. Combat Service:			None
q. Decorations/Awards:		AM, ARCOM-2, AAM-5, AGCM-4, NDSM, GWOTSM							KDSM, NPDR-2, ASR, OSR-2
r. Administrative Separation Board: 	Yes
s. Performance Ratings:		Yes	
t. Counseling Statements:		None
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant reenlisted in the Regular Army on 22 June 2009, for an indefinite period of time.  He was 31 years old at the time and a high school graduate.  He served two tours in Korea.  He earned an AM, two ARCOM’s, five AAM’s, and four AGCM’s and completed 15 years,             8 months, and 28 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 19 September 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, paragraph c, Section III, AR 635-200, by reason of misconduct serious offense for committing the following offenses on divers occasions (101001 - 110331):

      a. wrongfully had an unauthorized relationship with Ms. KF, a 17 year old high school 	student and prospect
      b. wrongfully sharing his lodging with Ms. KF
      c. wrongfully dating Ms. F
      d. wrongfully meeting with Ms. F who is of the opposite gender, without at least one 	qualified person present
      e. wrongfully misusing his government issued vehicle for the purpose of engaging in 	activities of an unauthorized and personal nature

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 
 
3.  On 8 November 2011, the applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board, contingent upon his receiving a characterization of service of no less favorable than general, under honorable conditions.  The applicant submitted a statement 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 an under other than honorable conditions discharge.  

4.  On 8 November 2011, the separation authority denied the applicant’s conditional waiver for a general, under honorable conditions discharge and referred his case to an administrative separation board.

5.  On 22 December 2011, the applicant was notified to appear before an administrative separation board and advised of his rights.  

6.  On 18 January 2012, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with a characterization of service of under other than honorable conditions.
  
7.  On 24 February 2012, the separation authority approved the findings and recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

8.  The applicant was discharged from the Army on 14 March 2012, with a characterization of service of under other than 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 a RE code of 4. 

9.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 18 May 2011, failed to obey a lawful regulation, by wrongfully having an unauthorized relationship with a 17-year old female (101001 - 110331), on divers occasions failed to obey a lawful regulation by wrongfully sharing lodging with a 17-year old female high school student (101001 - 110331), on divers occasions failed to obey a lawful regulation by wrongfully dating a 17-year old female high school student (101001 - 110331), failed to obey a lawful general regulation, by wrongfully being with a 17-year old female high school student, who was of the opposite sex, without at least one qualifying person present (101001 - 110331), failed to obey a lawful general regulation, by misusing his GOV for the purpose of engaging in activities of an unauthorized and personal nature (101001 - 110331).  The punishment consisted of reduction to the grade of E-5, forfeiture of $1,482 pay per month for two months and a written reprimand, (FG). 

2.  A total of ten NCOER’s; the last one covered the period of 110608 to 111101.  The applicant was rated as marginal and received 5/5 from the senior rater.  On his previous NCOER the applicant was rated as fully capable and received 3/3 from the senior rater.

3.  A letter of reprimand dated 8 July 2011, for having an inappropriate relationship with a high school student, in violation of USAREC Reg. 600-25, paragraph 2-1(a) and Article 92, of the UCMJ.





EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided a DD Form 293, email defense counsel stating the age of Ms. KF was incorrect in the separation files and on the Article 15, certificate of birth for Ms. KF, driver’s license for Ms. KF, and a DD Form 214. 

POST-SERVICE ACTIVITY: 

None provided by the applicant.

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 his discharge was carefully considered.  However, after examining the applicant’s record of service, the documents 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 serious misconduct, the applicant diminished the quality his service below that meriting a general or a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for multiple violations of the Uniform Code of Military Justice.

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 that the female was 18 years old, his command was overly religious, said that what he did was morally wrong, and labeled him a predator.  Regardless of the age of the female in question the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   As a recruiter the applicant was in a position of trusted authority and by engaging in a perceived inappropriate relationship the applicant adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  

5.  The applicant also requested a change to the reason for his discharge.  However, 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. 

6.  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.  In view of the foregoing and notwithstanding the propriety of the discharge, recommend the Board change block 27, reentry code to 3, as approved by the separation authority.    

7.  The records show the proper discharge and separation authority procedures were followed in this case.  

8.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.  




SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance 	  Date:    6 May 2013        Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel: None

Witnesses/Observers:  Girlfriend. 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  Investigation of Incident
	
2.  In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

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:		No Change
Change RE Code to:			RE-3
Grade Restoration to:			NA
Other:						NA










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)		AR20120019485



Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1