IN THE CASE OF:  

      BOARD DATE:  	5 April 2013

      CASE NUMBER:  	AR20120020353
___________________________________________________________________________

Board Determination and Directed Action

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.  
      



      
      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 general, under honorable conditions to honorable and a change to the narrative reason for the discharge, the SPD and RE codes.

2.  He states, in effect, that he was acquitted of the civilian criminal charge that led to his discharge.  He spent three years and eight months in jail for a crime he did not commit.  He wants to return to the Service but was told by a recruiter he needed to have the separation and reentry codes upgraded.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		1 November 2012
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			17 May 2002
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, paragraph 14-12c, JKQ
					RE-3
e. Unit of assignment:			54th Quartermaster Co, Fort Lee, VA
f. Current Enlistment Date/Term:	7 September 1999, 4 years
g. Current Enlistment Service:	2 years, 8 months, 11 days 
h. Total Service:			2 years, 8 months, 11 days
i. Lost time:				466 (See page 3)	
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2	
l. Military Occupational Specialty:	71L10, Administrative Specialist
m. GT Score:				108
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None 
q. Decorations/Awards:		ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None	
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant's service record shows he enlisted in the Regular Army on 7 September 1999; he was 18 years old and a high school graduate.  He attended basic and advanced individual training at Fort Jackson and Fort Sill and was trained in and awarded military occupational specialty (MOS) 71L10, Administrative Specialist.  His record documents no acts of valor or significant achievement.  


SEPARATION FACTS AND CIRCUMSTANCES

1.  On 11 March 2002, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct, for the commission of serious offenses; specifically for being arrested by civilian authorities for charges of robbery and capital murder.

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and informed the applicant of his rights.

3.  On 21 March 2002, the applicant waived legal counsel, was advised of the impact of the discharge action, and did not submit a statement on his 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 a general, under honorable conditions discharge.  

4.  On 23 April 2002, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions under the provisions of AR 635-200, paragraph 14-12c, for the commission of a serious offense.

5.  The applicant was separated from the Army on 17 May 2002, under Army Regulation 635-200, Chapter 14-12c, Misconduct, with a general, under honorable conditions discharge, an SPD code of JKQ and an RE code of 3.

6.  The applicant’s service record contains evidence that on 27 January 2001, he was arrested by civilian authorities and subsequently confined giving him a total of 466 days of lost time (010127-020517).  This lost time is not annotated in the applicant’s DD Form 214.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A civilian police report dated 12 June 1999 documented charges and subsequent arrest for robbery and capital murder.

2.  The record does not contain any evidence of actions under the Uniform Code of Military Justice or negative counselings.

EVIDENCE SUBMITTED BY THE APPLICANT: 

A DD Form 149, a copy of the civilian case action summary, a DD Form 214, and a character reference letter.

POST-SERVICE ACTIVITY: 

None provided.

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 his characterization, the reason for his discharge and reentry code was carefully considered.  However, after examining his military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or change the reason for his 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 an 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 that he was acquitted of the civilian criminal charges that led to his discharge that landed him in jail for 3 years and 8 months.  However, Army Regulation       635-200, paragraph 14-12c, stipulates that a Soldier may be separated for the commission of a military or civil offense, if the circumstances warrant separation and a punitive discharge is, or would be authorized for the same or a closely related offense under the Manual for Courts Martial (MCM). 

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 ,” 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 applicant has also requested a change to the reentry code (RE) in order to rejoin the Service.  However, 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.  There are no basis upon which to grant a change to the reason or to the RE 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. 

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: Records Review     Date:    5 April 2013       Location: Washington, DC

Did the Applicant Testify:  No 

Counsel: None

Witnesses/Observers: NA

Board Vote:
Character  	Change:  1	No Change:  4
Reason	Change:  0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:  No
Change Characterization to:  NA	
Change Reason to:	NA
Change RE Code to: NA	
Grade Restoration to: NA	
Change Authority for Separation:	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	UOTH - Under Other Than                           			               Honorable Conditions
ADRB Case Report and Directive (cont)		AR 20120020353

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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