IN THE CASE OF:  	Mr. 

      BOARD DATE:  	9 September 2013

      CASE NUMBER:  	AR20120022544
___________________________________________________________________________

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 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.  On behalf of the applicant, counsel requests an upgrade of the applicant’s discharge from general, under honorable conditions to honorable, a change to the narrative reason for separation and the RE code.  

2.  Counsel states, in effect, the applicant is requesting an upgrade of his discharge to honorable.  Such a result is mandated by the facts and circumstances surrounding the applicant’s court- martial decision, actions of his command, and conduct since discharge.  The applicant recognizes the mistakes he made, and took full responsibility for them at his court-martial. He desires to continue moving forward in his career as a firefighter/paramedic.  Unfortunately, the applicant’s command chose to separate him for the actions which he was court-martialed for, plus a few other charges to make the action seem justified.  The applicant was young, and got over his head into debt—something that plagues many young Soldiers.  He suffers from a federal conviction for his actions, which will plague him for the rest of his life. The applicant respectfully asks that he not continue to be punished with a general discharge, especially in light on the decision of the court-martial panel to retain him.  The applicant was a great Soldier, selected for promotion to sergeant during his first month of eligibility, deployed to Bosnia and Kosovo, was part of the 10th Special Forces Group (A), and was selected to attend the Warrant Officer School.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		17 December 2012
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			11 September 2003
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, Chapter 14, paragraph 14-12b, 					JKA, RE-3
e. Unit of assignment:			HHC, Warrant Officer Career Center, Fort Rucker, 						AL
f. Current Enlistment Date/Term:	12 December 2000, 6 years
g. Current Enlistment Service:	2 years, 8 months, 27 days
h. Total Service:			5 years, 10 months, 27 days
i. Time Lost:				None
j. Previous Discharges:		RA (971010-001211), HD
k. Highest Grade Achieved:		E-5	
l. Military Occupational Specialty:	33W1S, Elect Warfare/Maintenance Supervisor
m. GT Score:				120
n. Education:				HS graduate
o. Overseas Service:			NIF
p. Combat Service:			None
q. Decorations/Awards:		AGCM, AFEM, KCM, AFSM, NPDR, ASR, OSR, 						JMUA
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes									
t. Counseling Statements:		Yes	
u. Prior Board Review:			None

SUMMARY OF SERVICE:		
	
The applicant's record shows he enlisted in the Regular Army on 15 October 1997, for a period of 4 years.  He was 19 years old at the time and a high school graduate.  He reenlisted on
12 December 2000 for a period of six years.  When his discharge proceeding were initiated he was serving at Fort Rucker, AL.  He served for 5 years, 10 months, and 27 days.  His record shows he was awarded an AGCM.  The applicant’s record is void of any overseas deployments.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 17 July 2003, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct; specifically for:

	a.  wrongfully appropriating a government issued telephone and personal identification number (PIN) , a violation of Article 121, UCMJ (between 030428-030523).  He received a Company Grade Article 15, UCMJ, for this offense (030714)

	b.  was convicted via a General Court- Martial for violations of Article 123a (four specifications) and Article 134 (one specification), (010605-020701).  As a result he was reduced in grade from SGT (E-5) to Private (E-1), received a forfeiture of $575.00 for three  months, and required to perform hard labor without confinement for three months.  The Commanding General of Fort Rucker approved the sentence and directed that the punishment be executed (030625)

	c.  being in noncompliance with AR 600-9 for exceeding body fat standards (030430) 
	d.  failing a unit record APFT (030221)
	e.  failing to appear for a scheduled record APFT (030221)  
	f.  failing a unit record APFT, and was subsequently flagged lAW AR 600-8-2 (021127).
	g.  failing a unit record APFT (021030)
	h.  being eliminated from the WOC Program for disciplinary reasons (020813)
	i.  being in possession of an unauthorized herbal dietary supplement, a violation of 	     	    Article 92, UCMJ.  He subsequently received a Summarize Article 15 (020802)
	j.  being in non-compliance with AR 600-9 for exceeding body fat standards (020709) 

2.  The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 22 July 2003, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions 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 the separation with an under other than honorable conditions discharge.  

4.  On 10 September 2003, the separation authority approved the conditional waiver request, 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 11 September 2003, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for misconduct, a Separation Program Designator code (SPD) of JKA and an 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.  A Company Grade Article 15 for wrongfully appropriating the Federal Telephone System (FTS), Personal Identification Number (PIN), of a value of approximately $1.27, the property of 1st Battalion, 210th Aviation Regiment.  His punishment consisted of a forfeiture of pay in the amount of $76.00 for one month. 

2.  A Summarized Article 15 (020802) for possessing herbal dietary supplement without authorization.  His punishment consisted of extra duty for five days. 

3.  A General Court-Martial (030625) for 

	a.  Specification:  Wrongfully using his government travel card for personal use (010207).  Plea: Not Guilty.  Finding: Dismissed.

	b.  Specification 1:  With intent to deceive, wrongfully and unlawfully made or uttered to the Bank of America a check for payment of money upon the Security Service Federal Credit Union, in the amount of $4,394.79, then knowing that he would not have sufficient funds (020207).  Plea: Not Guilty.  Finding: Guilty.

	c.  Specification 2:  With intent to deceive wrongfully and unlawfully made or uttered to the Bank of America a check for payment of money upon the Security Service Federal Credit Union, in the amount of $5,206 09, then knowing that he would not have sufficient funds (010605).  Plea: Not Guilty.  Finding: Guilty.

	d.  Specification 3:  With intent to deceive, wrongfully and unlawfully made or uttered to the Bank of America three checks for payment of money upon the Security Service Federal

Credit Union, in the amounts and on the dates as follows: $6,210.00 (011124), $6,510.00 (011205), and $1,794.78 (011220), then knowing that he would not have sufficient funds.
Plea: Not Guilty.  Finding: Guilty.

	e.  Specification 4:  With intent to deceive, wrongfully and unlawfully made or uttered to the Bank of America five checks for payment of money upon Security Service Federal Credit Union in the amounts and on the dates as follows: $1,618.91 (020101), $10,261.01 (020110),   $6,010.00 (020118), $2,244.18 (020122), and $5,010.00 (020204), then knowing that he would not have sufficient funds in or credit with such bank for the payment of the said checks.  Plea: Not Guilty. Finding: Guilty.

	f.  Specification 5:  Dishonorably failed to pay debt in the amount of $28,444.65, to Bank of America (020204-020701), Plea: Not Guilty.  Finding: Guilty, except the figures, “$28,444.65,” substituting there for the figures, “$26,963.81.”  The sentence was adjudged on 8 May 2003. To be reduced to the grade of E-1, to forfeit $575.00 pay per month for three months, and to perform hard labor without confinement for three months. 

4.  Numerous negative counseling statements dated between 19 July 2000 to 26 June 2003,  for failing to report, notification of intent to chapter, not meeting the height and weight standards, failing the APFT, writing bad checks, misuse of a government issued telephone and pin number.

5.  A successful NCOER covering the period June 2001 through December 2001.

EVIDENCE SUBMITTED BY THE APPLICANT: 

A DD Form 293; a statement from counsel; a certificate from the Special Warfare Center and School; case separation documents; 13 certificates of course completion; and five memoranda.  

POST-SERVICE ACTIVITY: 

Completed numerous courses and is a firefighter/paramedic.

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.

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct.  

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" will be assigned an RE Code of 3.

DISCUSSION AND RECOMMENDATION:

1.  On behalf of the applicant, counsel request for an upgrade of the applicant’s 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.  Counsel 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.  Counsel contends the applicant had good service, promoted to E-5, selected for Warrant Officer School, and served in Bosnia and Kosovo.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.

5.  Counsel contends the applicant was young and got over his head into debt at the time of 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 and maintained their finances.

6.  Counsel contends since the applicant left the Army and has continued to move forward with his career.  He is a firefighter/paramedic and has completed numerous certifications/schools.  The applicant’s post-service accomplishments have been noted as outlined on the application and in the documents with the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities

7.  Counsel requested a change to the reason for his discharge.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12b, 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 "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.  

8.  Counsel requested a change to the 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. 

9.  Lastly, 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.  The character of the applicant’s discharge is commensurate with his overall service record.  

10.  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:  9 September 2013   Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel:  William Cassara, Esquire
                 Box 2688
                 Evans GA 30809

Witnesses/Observers:  None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE

1.  The applicant submitted the following additional documents:

	a. MVA Record

2.  The applicant presented no additional contentions.

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:  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:	No Change
Change Reason to:			No Change
Change RE Code to:		NA
Grade Restoration to:		NA
Change Authority for Separation:	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)		AR20120022544



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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