IN THE CASE OF:  	

      BOARD DATE:  	1 May 2013

      CASE NUMBER:  	AR20130000220
___________________________________________________________________________

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 to upgrade his characterization of service from under other than honorable to general, under honorable conditions or fully honorable.

2.  The applicant states, in effect, that he is requesting an upgrade for reenlistment purposes.  Prior to his discharged, he had reenlisted under a reclassification option and was scheduled to attend the infantry school.  He served in various leadership positions.  He was on the color guard, in charge of setting up various fuel systems during field exercises, and received an AAM for his combat life saving service at a range.  His section sergeant had stated on his behalf at his summarized court-martial that his work ethics were second to none.  He is not proud of the mistakes he made.  
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	17 December 2012
	b.	Discharge Received:	Under Other than Honorable Conditions
	c.	Date of Discharge:	9 April 2009
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense) / AR 635-200 
			paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	Quartermaster Company, 194th Combat Sustainment
			Support Battalion, Camp Humphreys, Korea
	f.	Current Enlistment Date/Term:	28 March 2007 / 3 years, 22 weeks
	g.	Current Enlistment Service:	1 year, 11 months, 24 days
	h.	Total Service:	1 year, 11 months, 24 days
	i.	Time Lost:	Military Confinement x 2 (081101-081106) for 6 days 
			(081202-081213) for 12 days - a total of 18 days
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	92F (Petroleum Supply Specialist)
	m.	GT Score:	96
	n.	Education:	GED
	o.	Overseas Service:	Korea
	p.	Combat Service:	None
	q.	Decorations/Awards:	NDSM; GWOTSM; KDSM; ASR; OSR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 28 March 2007 for a period of 3 years and 22 weeks.  He was 19 years old at the time of entry and had a high school equivalency (GED).  He served in Korea.  There is no record of having earned any valor or achievement award.  He completed 1 year, 11 months, and 24 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 15 December 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct—commission of a serious offense, for the following offenses:

      a. missing multiple formations 
      b. disobeying commissioned and noncommissioned officers 
      c. communicating threats to his commanding officer (081204)
      d. attempting to assault his command officer (081204)

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

3.  On 16 March 2009, 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 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 1 April 2009, the separation authority approved the waiver request, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

5.  The applicant was discharged from the Army on 9 April 2009, with a characterization of service of under other than honorable conditions, under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and a RE code of 3. 

6.  The applicant’s record of service indicates a total of 18 days of time lost for being in military confinement from 1 November 2008 until 6 November 2008 for six days and from 2 December 2008 until 13 December 2008 for 12 days.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A Summary Court Martial, dated 2 December 2008, for failing to report for duty x 7(081030, 081026, 081022, 081016, 081015, 081014, 081002); disobeying an NCO (080930), failing to obey an order/regulation by consuming alcoholic beverages while under age 21 (081001), committing an assault by striking PV2 L in the face with a closed hand (081001), breaking restriction (081031).  The sentence consisted of reduction to the grade of E-1, forfeiture of $898 per month for one month, and confinement for 23 days (SCM).

2.  Two negative counseling statements, dated 17 June 2008 and 16 October 2008, for failure to report to his place of duty, insubordination toward an NCO, disobeying an NCO, communicating a threat, and being disrespectful.

3.  An MP Report, dated 5 December 2008, that indicates the applicant was the subject of an investigation for simple assault; disobeying a lawful order of a commanding officer; communicating a threat. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none.

POST-SERVICE ACTIVITY: 

The applicant provided none.

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, 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 his service below that meriting a general or a fully honorable discharge.  The applicant’s record of service was marred by a summary court-martial for multiple violations of the Uniform Code of Military Justice and negative counseling statements.

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 requests an upgrade 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.

5.  The applicant contends that he had good service and listed his achievements.  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 summary court-martial for violations of the Uniform Code of Military Justice.  

6.  Furthermore, it is determined that 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.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

7.  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: 	Record Review	     Date:  1 May 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)		AR20130000220



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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