IN THE CASE OF:  	

      BOARD DATE:  	9 September 2013

      CASE NUMBER:  	AR20120020606
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and notwithstanding the examiner’s Discussion and Recommendation, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service (i.e., five prior honorable discharges) and found his testimony to be credible and as a result it is inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to Honorable.  The Board determined the reason for discharge and the reentry eligibility (RE) code was both proper and equitable and voted not to change it.  




      
      
      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 general, under honorable conditions discharge to honorable, a change to the reason for the discharge and the reentry eligibility (RE) code.

2.  The applicant states, in effect, his ex-wife committed adultery while both were stationed at Aberdeen Proving Grounds, MD.   He wanted his marriage to work and was emotionally upset when he discovered his wife did not feel the same way.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		15 November 2002	
b. Discharge Received:		General, under honorable conditions
c. Date of Discharge:			30 December 2003	
d. Reason/Authority/SPD/RE Code:	Misconduct, AR 635-200, paragraph 14-12b, JKA 							RE-3	
e. Unit of assignment:			324th Military Police Co, Chambersburg, PA		
f. Current Enlistment Date/Term:	OAD 16 February 2003, 365 days
g. Current Enlistment Service:	0 years, 10 moths, 15 days
h. Total Service:			23 years, 6 months, 29 days (Includes inactive 								service)
i. Time Lost:				None
j. Previous Discharges:		USAR 800603-860331/HD
						IADT 800904-801217/HD
						USAR 860401-911210/HD
						ARNG 911211-920817/HD
						USARCG 920818-970818/NA
						OAD 970819-980428/HD
						USAR 980429-000228/NA
						USAR 000229-030215/NIF
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	92G20/Food Svc Ops Spec	
m. GT Score:				94
n. Education:				HS Grad
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, AFSM, ARCAM, AFRM-M, NPDR, ASR, NM
r. Administrative Separation Board: 	Not in file
s. Performance Ratings:		Yes
t. Counseling Statements:		None
u. Prior Board Review:			8 November 2006, denied
SUMMARY OF SERVICE:		
	
The applicant enlisted in the US Army Reserve (USAR) on 3 June 1980.  He served until 10 December 1991and received an honorable discharge.   On 11 December 1991 he joined the Army National Guard and was honorably discharged on 17 August 1992 and transferred to the USAR Control Group.  On 19 August 1997 he was ordered to active and on 28 April 1998, upon completion of his term of service was honorably discharged and transferred back to the USAR where he continued to serve.  On 16 February 2003, once again, the applicant was ordered to active duty for a period of 365 days in support of Operation Iraqi Freedom; however, he did not serve in a designated imminent danger pay area.  He was 44 years old at the time of his discharge and served a total of 23 years, 6 months and 29 days of active and inactive service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 3 November 2003, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, specifically for the following reasons;

 	a. failure to pay a debt to AAFES in the amount of $465.00, which was as result of three dishonored checks written between 5-8 July 2003
	b. on 9 August 2003, charged with assault in the second degree, a sex offense in the first degree, burglary in the first degree, violation of a protection order and drug possession
	c. counseled on 1 April 2003 for violations of a no contact order given by the company commander
 	d. on 25 July 2003, made offensive comments to family members
	e. on 7 June 2003, failed to follow instructions
	f.  on 20 March 2003, charged with simple assault for choking his wife

2.  The unit commander indicated that the applicant’s motivation and inability to respond to counseling’s warranted his immediate separation from the US Army.  Based on the above misconduct the commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.

3.  The applicant’s election of rights is not contained in the available records and the presumption of government regularity prevails in this case.  However, the unit commander properly advised the applicant of his right to consult with legal counsel and his entitlement to an administrative separation board.  The commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  

4.  On 21 November 2003, 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 was discharged from the Army on 30 December 2003, with a characterization of service of general, under honorable conditions under the provisions of AR 635-200, Chapter 14, paragraph 14-b, for a pattern misconduct, with a Separation Program Designator code (SPD) of JKA and a reentry code of 3. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   There is no evidence of any violations of the Uniform Code of Military Justice during the period under review other than what is contained in the unit commander’s notification of separation action.

2.  One NCOER covering the period of June 2002 through September 2002, the rater assessed him as fully capable and received a 3/3 from the senior rater and was assessed as successful/superior respectively.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a letter from his attorney explaining the “Alford” plea agreement.

POST-SERVICE ACTIVITY: 

None provided with the application  

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, his military records, the document 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 pattern of misconduct, the applicant diminished the quality of 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 that his ex-wife committed adultery while they were both stationed at Aberdeen Proving Ground and these family issues affected his behavior and ultimately caused him to be discharged.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  

5.  The applicant also requests that the reason for his discharge be changed.  The applicant was discharged under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct.  The narrative reason specified by Army Regulations in effect at the time for a discharge under this paragraph is "Misconduct” and the separation code is "JKA."  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 eligibility (RE) code.  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 to include the reentry eligibility (RE) code being both proper and equitable, recommend the Board deny relief.  

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Personal Appearance	 Date: 9 September 2013  Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel: Yes

Witnesses/Observers: Spouse 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	Six character reference letters with various dates.

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:  3	No Change:  2
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: 	Honorable	
Change Reason to:			No Change
Change Authority for Separation:  No Change
Change RE Code to: 		No Change	
Grade Restoration to: 		No Change	
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)		AR20120020606

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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