IN THE CASE OF:  	Mr. 

      BOARD DATE:  	28 August 2013

      CASE NUMBER:  	AR20130000834
___________________________________________________________________________

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 that his general, under honorable conditions discharge be upgraded to honorable and a change to his narrative reason for discharge.

2.  The applicant states, in effect, that he was unjustly discharged and requests that his discharge be upgrade for the purpose of increasing his opportunities for employment.  He contends his discharge was based on an unlawful conviction at a SCM after serving just short of 8 years of honorable service.  During his court martial there was undue command influence when the court martial officer called the brigade commander during the proceedings.  He was denied his due process.  He was read four different Article 15s surrounding the same incident.  He believes he has done nothing wrong and was discharge illegally as a means of quieting a disruption in his former command element.  He believes he was not, nor does his family deserve the fate that his previous command unjustly dealt to him.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		2 January 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			16 December 2012
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			D Co, 3rd Bn, 509th IN Abn, Joint Base Elmendorf-						Richardson, AK
f. Current Enlistment Date/Term:	21 August 2008, 6 years 
g. Current Enlistment Service:	4 years, 3 months, 26 days
h. Total Service:			7 years, 10 months, 6 days
i. Time Lost:				None
j. Previous Discharges:		RA-050201-080820/HD
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	11B1P, Infantryman
m. GT Score:				118
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan (111215-121012) Iraq (070407-080602-						prior period of service)
q. Decorations/Awards:		ARCOM, AAM-3, AGCM-2, ACM-w/CS, ICM-w/CS, 						NDSM, GWOTSM, ASR, OSR-2, CIB
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 1 February 2005, for a period of 3 years.  He reenlisted 21 August 2008, for a period of 6 years.  He was 23 years old at the time of reenlistment and a high school graduate.  He served a tour of combat in Afghanistan, a prior period in Iraq, and achieved the rank of SGT/E-5.  He earned an ARCOM, three AAM's, two AGCM's, and the CIB and completed 7 years, 10 months, and 6 days of total active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that 21 November 2012, 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 misconduct (serious offense) for soliciting a subordinate Soldier to break his restriction and consume alcohol after being ordered not to.

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 21 November 2012, 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 own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.

4.  On 4 December 2012, 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 6 December 2012, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ 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.  SCM, dated 15 August 2012, for soliciting a Soldier to consume alcohol and break his restriction on or about (120227).  The punishment consisted of reduction to the grade of E-4, forfeiture of one-thirds of one month's, and restriction for 60 days.

2.  Counseling statement, dated 13 September 2012, which informed the applicant he was being recommended for flagging action.
3.  Report of Mental Status Evaluation, dated 26 September 2012, which determined the applicant could understand and participate in administrative proceedings and could appreciated the difference between right and wrong.

4.  One NCOER covering the period of 1 July 2010 through 30 June 2011.  The applicant was rated overall as fully capable.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, certificates and recommendations for award of ARCOM's and AAM's, orders for award of the AGCM, certificates of achievement (5), certificate of appreciation, copy of request for clemency, dated 29 August 2012, separation document pertaining to another Soldier, dated 1 October 2012, sworn statements (3), copy of SCM documents, text message documents, and a DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

None were 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.


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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (serious offense).

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

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 documents 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 misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by his SCM for violation of the Uniform Code of Military Justice.

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.  Furthermore, about the applicant's request to change his narrative reason for separation.  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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for misconduct (serious offense).  The regulation further stipulates that no deviation is authorized.  

5.  The applicant contends he was unjustly discharged and that during his court martial there was undue command influence, and that he was read 4 Article 15s for the same offense.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged.  The applicant’s statement alone does not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.   

6.  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.  

7.  The applicant contends he served just short of 8 years of honorable service.  The applicant’s service accomplishments and the quality of his service prior to the incident 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 incident of misconduct and the documented action under the Uniform Code of Military Justice.

8.  The applicant has expressed his desire to rejoin the Service, to have better job opportunities and the benefits of the GI Bill.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  

9.  Furthermore, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 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. 

10.  Further, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

11.  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:  28 August 2013   Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA 

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 Authority for Separation:	NA
Change RE Code to:		NA
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)		AR20130000834



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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