IN THE CASE OF:  	Mr. 

      BOARD DATE:  	7 October 2013

      CASE NUMBER:  	AR20130000997
___________________________________________________________________________

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.  However, notwithstanding the propriety of the applicant’s discharge, the Board found that the applicant’s DD Form 214, block 27 contains the erroneous reentry code of 4.    

3.  In view of the error, the Board directed an administrative correction to block 27 to read 
RE-3, as required by Army Regulations.  





      
      
      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 his under other than honorable conditions discharge be upgraded to honorable and change the reason for separation.  

2.  The applicant states, in effect, that in January 2005, he was transferred to RHHT 3d ACRR (rear detachment) and placed on Stop Loss with an expiration term of service (ETS) date of 30 June 2006, due to the upcoming deployment in March 2005.  He inquired as to why he was transferred and was informed by the unit commander that he was being processed out of the Army for misconduct.  At the end of the month, he noticed that he had also been removed from Stop Loss and he was escorted to complete his separation physical.  Later that day, he was given a memorandum from the commander to begin clearing Ft. Carson for separation.  In June 2005, he inquired about his ETS orders, as he was within four months of ETS and had a leave balance of around 60 days.  The company 1SG agreed that he should be given ETS orders and attempted to process the request for ETS orders.  The RS-1 OIC informed the 1SG that he was under Stop Loss/Stop Move and by the end of June 2005, his ETS had again changed to a Stop Loss ETS of 30 April 2006.  On 17 August 2005, he was convicted of a Colorado F-5 Felony and the conviction was entered into his record.  The unit verified the information, and then proceeded to place a FLAG for elimination on 22 August 2005. 

3.  The Chapter Packet was put together prior to the entering of the conviction but the unit did not take action on final steps of the Chapter 14 process until well after his contract ETS date of
10 October 2005.  Under the Stop Loss/Stop Move policy, he should have been allowed to receive his ETS orders and have cleared the installation.  The Stop Loss/Stop Move policy states that “Soldiers whose quality of service warrants separation” shall be exempt from Stop Loss/Stop Move.  As of 15 April 2005 the unit demonstrated that it was their decision to begin the separation process for the good of the service. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			7 January 2013	
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				16 March 2006
d. Reason/Authority/SPD/RE Code:		Misconduct (Serious Offense),              								AR 635-200, 14-12c, JKQ, RE-4	
e. Unit of assignment:				Regimental HHT, Fort Carson, CO
f. Current Enlistment Date/Term:		11 October 2002, 3 years
g. Current Enlistment Service:		3 years, 5 months, 5 days
h. Total Service:				6 years, 9 months, 14 days
i. Time Lost:					None
j. Previous Discharges:			RA (990603-021010), HD
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		19K10, M1Armor Crewman
m. GT Score:					107
n. Education:					HS Graduate
o. Overseas Service:				Germany, SWA x 2
p. Combat Service:				Kuwait (020909-030225) and Kuwait/Iraq 							(030301-030810)
q. Decorations/Awards:			ARCOM-2, AAM-4, AGCM-2, NDSM, AFEM, 							GWOTEM, GWOTSM, HSM, NPDR, ASR, 							OSR, CAB
r. Administrative Separation Board: 		Yes
s. Performance Ratings:			Yes
t. Counseling Statements:			Yes
u. Prior Board Review:				Yes, 29 February 2008, denied

SUMMARY OF SERVICE:	
	
The applicant enlisted in the Regular Army on 3 June 1999 for a period of 4 years.  He was
20 years old at the time and was a high school graduate.  He reenlisted on 11 October 2003 for 3 years.  When his discharge proceedings were initiated he was serving at Fort Carson, CO.  He served two combat tours in Kuwait and Iraq.  His record shows he was awarded two ARCOMs, four AAMs, two AGCMs, and a CAB.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 12 December 2005, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, paragraph 14-12c, specifically for attempted enticement and sexual assault on a child under the age of 16.

2.  Based on the above misconduct, the commander recommended an under other than honorable conditions discharge.

3.  On 13 December 2005, the applicant consulted with legal counsel and requested 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.  The intermediate commander reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  

4.  On 30 January 2006, the applicant was notified to appear before an administrative separation board and advised of his rights.  

5.  On 10 February 2006, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with characterization of service of an under other than honorable conditions discharge.  

6.  On 8 March 2006, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of an under other than honorable conditions discharge.  

7.  The applicant was discharged from the Army on 16 March 2006, with a characterization of service of an 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 an RE code of 4. 

8.  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 copy of a court docket from the Combine Courts, County of Fremont, Canon City, CO.

2.  A Canon City Police Department Investigation Report, (date NIF), that indicates the applicant was the subject of an investigation for attempted enticement and sexual assault on a child under 16.

3.  One negative counseling statement, dated 20 October 2005, informing the applicant of initiation of discharge proceedings.

4.  Four successful NCOERs covering the period April 2003 through December 2005.  Of note, the NCOER with the ending period of December 2005 reflected the misconduct; however, he was still rated “Fully Capable.”

EVIDENCE SUBMITTED BY THE APPLICANT: 

An online application; Leave and Earning Statements, 12 pages; AMHRR documents, 14 pages; MILPER documents, 16 pages; and a DD Form 214.

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.

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, paragraph 14-12c, for 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 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.  The applicant's serious incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  His misconduct clearly diminished the quality of his service below that meriting a general or an honorable discharge. 

3.  The applicant provided a MILPER message pertaining to Stop Loss.  He contends that he should have been able to ETS prior to being charged with the misconduct.  The applicant’s contentions were noted; however, the following was determined:

	a. The evidence of record indicates the MILPER Message Number 04-032, issued on 11 November 2003, Implementation of the Active Army Unit Stop Loss/Stop Movement Program went into effect on 1 January 2004, more than a year prior to the main deployment of the applicant’s unit in March 2005.

	b. The record shows that the applicant was pending civilian charges when Stop Loss took effect thereby, resulting in an adjustment of applicant’s ETS date to 30 June 2006, and likely precluding the applicant from deploying because of the pending civilian charges. 
	c. The applicant was notified of the separation action in December 2005 and requested an administrative separation board which was held in February 2006.  On 8 March 2006, the separation authority approved the findings and recommendation of the administrative separation board and directed that the applicant be discharged accordingly.

4.  The applicant contends the narrative reason for the discharge should be changed.   However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with an under  other than 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 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. 

5.  The applicant also contends an upgrade of his discharge would allow him to receive medical benefits.  However, eligibility for veteran's benefits to include medical and educational benefits under the Post-9/11 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.

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.  However, the service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4.  The discharge packet confirms the separation authority approved the discharge by reason of misconduct (serious offense).  AR 635-5-1, (Separation Program Designator Codes) and Cross Reference Table shows that a Soldier processed for misconduct (serious offense) will be assigned an SPD Code of JKQ and an RE Code of 3.  

8.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.  Further, recommend the Board change block 27, reentry code to 3, as approved by the separation authority.   









SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance    Date:  7   October 2013    Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel: None

Witnesses/Observers:  None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE

The applicant submitted no additional documents or contentions.
	
In addition to the evidence in the record, the Board carefully considered the 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:		Yes
Change Characterization to:	No Change
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		3
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)		AR20130000997



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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