IN THE CASE OF:  	

      BOARD DATE:  	26 April 2013

      CASE NUMBER:  	AR20120022324
___________________________________________________________________________

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 was 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.

2.  The applicant states, in effect, that he would like the opportunity to be able to serve in the military again.  He contends that at the time of discharge he was young and immature and made a few bad decisions.  Prior to his discharge he was recommended for an honorable discharge.  However, prior to his unit deploying, his first sergeant changed his discharge to a general discharge with a misconduct narrative for his issues of misconduct.  He was instructed he could wait and fight the charge after his unit returned from deployment or wait six months and have it changed.  He chose to wait six months and now regrets his decision.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 December 2012
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			22 May 2003
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200
      paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			C Co, 51st SC, Fort Bragg, NC
f. Enlistment Date/Term:		1 November 2001, 4 years
g. Current Enlistment Service:	1 year, 6 months, 22 days
h. Total Service:			4 years, 6 months
i. Time Lost:				None
j. Previous Discharges:		USAR (981123-011031)/NA
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	31R10, Multichannel Transmission System Operator 
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:		

The applicant's record shows he enlisted in the Regular Army on 1 November 2001 after serving 2 years, 11 months, and 8 days in the United States Army Reserves.  He was 22 years old at the time and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 31R10, Multichannel Transmission System Operator.  He served 1 year, 6 months and 22 days of a 4 year enlistment and his record documents no acts of valor or significant achievement.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 24 April 2003, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c,             AR 635-200, for misconduct-commission of a serious offense, specifically for receiving a field grade Article 15 (021008) for two instances of willfully disobeying a superior noncommissioned officer and for disrespecting a superior noncommissioned officer.

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

3.  On 30 April 2003, the applicant consulted with legal counsel, was advised of the impact of the discharge action and 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 a general, under honorable conditions discharge.  

4.  On 12 May 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 22 May 2003, with a characterization of service of general, under honorable conditions under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and a RE 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.  Article 15, dated 8 October 2002, for disobeying a lawful order from a superior noncommissioned officer (020806), disrespectful in language toward a superior commissioned officer (020810), and for disobeying a lawful order from a superior noncommissioned officer (020810).  The punishment consisted of reduction to the grade of E-2, forfeiture of $619.00 pay per month for two months (suspended), and correctional custody for 21 days (CG). 

2.  There are 9 counseling statements dated between 18 April 2002 and 9 January 2003 for monthly performance, failure to report, disrespect to a noncommissioned officer, and lack of discipline, integrity, and pending chapter action.
      

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant submitted a copy of his DD Form 214 for the period of service under review, developmental counseling forms, dated 11 August 2002 and 9 January 2003, record of proceedings under Article 1, dated 8 October 2002, incomplete confinement order, dated       21 October 2002, memorandum, dated 8 January 2003 reference debt avoidance notice, pre-separation counseling checklist, dated 7 February 2003, and the first page of his discharge notification memorandum, dated 24 April 2003, in addition to his online application. 

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 his characterization and a change to the reason for his discharge 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 he was recommended for an honorable discharge and later received a general, under honorable conditions discharge and that he was young and immature at the time of the discharge.  The record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  Furthermore, there is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was pending a honorable discharge.  In fact, the applicant’s Articles 15 and numerous negative counseling statements justify being discharged for misconduct, with a general, under honorable conditions discharge.  

6.  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.  

7.  The applicant also request the opportunity to be able to serve in the military again.  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. 

8.  The records show the proper discharge procedures were followed in this case.  

9.  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: 26 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:			No
Change Characterization to:		No Change
Change Reason to:				No Change
Change Authority for Separation:		No Change
Change RE Code to:			No Change
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)		AR20120022324



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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