IN THE CASE OF:  		

      BOARD DATE:  	1 April 2013

      CASE NUMBER:  	AR20120020871
___________________________________________________________________________

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.  Further, notwithstanding the propriety of the applicant's discharge, the Board noted certain administrative errors on the applicant's DD Form 214 and directed the following changes reflecting what the separation authority approved:
      
      a. block 25, separation authority changed to AR 635-200, paragraph 14-12c, 
      b. block 26, separation code changed to JKQ, 
      c. block 28, narrative reason for separation changed to Misconduct (Serious Offense).  





      
      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 fully honorable and a change to the narrative reason for the discharge.

2.  He states, in effect, that he has been out of the Army for over 5 years and feels he paid his debt in full by serving time in confinement.  He has learned a lot from his experience would like to raise his family the best way possible.  The economy makes it difficult for him and an upgrade in his characterization will give him better opportunities.  He served two combat tours and never expected to come home the way he did. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		8 November 2012
b. Discharge Received:		General, under honorable conditions 
c. Date of Discharge:			8 May 2007
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, Chapter 14-12b, JKA, RE-3
e. Unit of assignment:			Co B, 125th Fwd Spt Bn, Fort Riley, KS
f. Current Enlistment Date/Term:	14 May 2003, 3 years
g. Current Enlistment Service:	3 years, 4 months, 23 days (includes excess leave)
h. Total Service:			3 years, 4 months, 23 days
i. Time Lost:				216 days of military confinement (060620-070121)
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	63B10, Wheel Vehicle Mechanic
m. GT Score:				97
n. Education:				GED
o. Overseas Service:			SWA
p. Combat Service:			Iraq (dates are not in the record)
q. Decorations/Awards:		ARCOM, AAM, NDSM, ICM, GWOTEM, GWOTSM, 						ASR, OSR, CAB
r. Administrative Separation Board: 	None
s. Performance Ratings:		None
t. Counseling Statements:		Yes	
u. Prior Board Review:			None
SUMMARY OF SERVICE:		
	
The applicant's record shows he enlisted in the Regular Army on 14 May 2003, for a period of 3 years; he was 23 years old at the time and had a GED.  The record shows he served a combat tour in Iraq and earned several awards that included an ARCOM, an AAM and a CAB.  At the time his discharge proceeding were initiated he was serving at Fort Riley, KS.  He served for almost 3 years and 5 months.  This period included 64 days of excess leave (070306-070508).  

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 2 February 2007, 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 (serious offense); specifically for being convicted by a general court-martial of 3 counts of assault and 2 counts of wrongfully communicating a threat.  

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 1 March 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived consideration of an administrative separation board (was not entitled to such a board), 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 16 March 2007, 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 serious offenses.

5.  The applicant was separated on 8 May 2007, under Army Regulation 635-200, Chapter 14-12b (Pattern of Misconduct), with a general, under honorable conditions discharge, an SPD code of JKA and an RE code of 3.

6.  The applicant’s record shows 216 days of lost time (060620-070121), as a result of military confinement.  He was retained under Title 10, USC 972.   

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  The applicant's disciplinary record includes a general court martial conviction for 3 specifications of assault (060307, 060311, and 060401) and 2 specifications of wrongfully communicating a threat (060307, 060401).  The record also shows the charges were initially preferred for attempted rape and attempted kidnaping; however, they were dismissed by the Military Judge based on a plea agreement.  The applicant’s punishment consisted of reduction to the grade of E-1, and confinement for 1 year.

2.  There is one negative counseling statement dated 1 February 2007, for misconduct.

3.  A Mental Status Evaluation dated 8 February 2007 indicates the applicant was suffering from mild PTSD but was cleared for the proposed administrative action.

EVIDENCE SUBMITTED BY THE APPLICANT 

None provided with the application.

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 and the reason for his discharge were carefully considered.  However, after examining his military records and the issues submitted with the application, there are insufficient 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 repeated incidents of serious misconduct, the applicant diminished the quality of his service below that meriting an honorable discharge.  The applicant’s service was marred by a general court-martial for multiple specifications of assault and communicating a threat.  

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.  

4.  The applicant contends that he paid his debt in full, served in combat, and is now looking better job opportunities.  The applicant’s in-service accomplishments and the quality of his service during the initial portion of the enlistment under review were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge.   Moreover, the Board does not grant relief for the purpose of gaining or enhancing employment opportunities.

5.  The applicant also requested a change to the reason for his discharge.  However, the applicant’s discharge was directed 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 review of the applicant’s record also revealed that someone in the discharge process erroneously entered the reason for separation as pattern of misconduct.  The separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12c, for misconduct (serious offense).  

7.  In view of the foregoing, the characterization of service being both proper and equitable, recommend the Board to deny relief.  Further, it is recommended that block 25 be changed to read separation authority to AR 635-200, paragraph 14-12c, block 26, separation code to JKQ, and block 28, reason for separation to Misconduct (Serious Offense), as it was approved by the separation authority.  




SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review    Date: 1 April 2013    Location: Washington, DC

Did the Applicant Testify?  No

Counsel: None

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:	None
Change Reason to:		Misconduct (Serious Offense)
Change RE Code to:	None
Grade Restoration to:	None
Other:	Change Separation (SPD) to: JKQ
Change Authority for Separation:	AR 635-200, Ch 14-12c
















 
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
ADRB Case Report and Directive (cont)		AR 20120020871

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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