IN THE CASE OF:  	Mr.

      BOARD DATE:  	7 June 2013

      CASE NUMBER:  	AR20130001447
___________________________________________________________________________

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 was 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, blocks 25 and 26, contain erroneous entries.  

3.  The Board directed the following administrative corrections and reissue of the applicant’s DD Form 214, as approved by the separation authority:

	a.	block 25, separation authority changed to AR 635-200, paragraph 14-12c, 
	b.	block 26, separation code changed to JKQ. 





      
      
      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 general, under honorable conditions to fully honorable, and change the narrative reason for his discharge.

2.  The applicant states, in effect, his commander used “misconduct” as the reason for his discharge.  He received an Article 15 almost a year prior to being discharged.  However, the real reason was that he fraudulently enlisted (not knowingly), because of fake GED transcripts by his recruiter.  The only evidence is a failed GED exam prior to his enlistment and he had passed a GED exam after he enlisted.  He informed his chain of command he was willing to do what it takes to remain in the service.  If not for the issue, he would still be in the Army.  He is asking for an honorable discharge and/or the reason for his separation changed so that he would be eligible for a waiver for reentry and for any benefits that he lost willingly.
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	14 January 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	10 April 2002
	d.	Reason/Authority/SPD/RE Code:	Misconduct, AR 635-200, Paragraph 14-12A, JKN, 
			RE-3
	e.	Unit of assignment:	B Battery, 2nd Battalion, 5th Field Artillery, Fort Sill, OK
	f.	Current Enlistment Date/Term:	31 January 2001, 3 years
	g.	Current Enlistment Service:	1 year, 2 months, 10 days
	h.	Total Service:	1 year, 2 months, 10 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-1
	l.	Military Occupational Specialty:	13B10 (Cannon Crewmember)
	m.	GT Score:	104
	n.	Education:	GED
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	ASR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	No
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 31 January 2001 for a period of 3 years.  He was 21 years old and his enlistment record reflects he had a high school equivalency (GED).  He was trained in and awarded military occupational specialty (MOS) 13B10, Cannon Crewmember.  His record documents no acts of valor or significant achievement.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 29 March 2002, 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 of a serious offense—abuse abuse of illegal drugs.  Specifically, that he failed to disclose information of his prior misconduct and convictions on his enlistment documents.

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge.

3.  On 29 March 2002, the applicant waived consultation with legal counsel and indicated he understood the impact of the discharge action, 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 a general, under honorable conditions discharge.  

4.  On 5 April 2002, 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 10 April 2002, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12a, AR 635-200, for misconduct, a Separation Program Designator code (SPD) of JKN 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.  Article 15, dated 24 July 2001, wrongful use of marijuana (010527-010626).  The punishment consisted of forfeiture of $521 per month for two months, 45 days of extra duty and restriction, (FG). 

2.  Enlistment documents with copies of criminal history report.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a statement, dated 6 November 2012, in support of his application.

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.

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.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and a change to the narrative reason was carefully considered.  However, after examining the applicant’s record of service, his military records, the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative 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 incidents of misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for violation of the Uniform Code of Military Justice and the unit commander’s report of concealing his misconduct and convictions on his enlistment documents.

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 “misconduct” was used as the reason for his discharge, and that he received an Article 15 almost a year prior to being discharged, but that the real reason was that he fraudulently enlisted (not knowingly), because of fake GED transcripts by his recruiter.  He had passed a GED exam after he enlisted.  His contention was carefully considered.  However, the available records reflect the applicant’s education to be based on a high school equivalency, a GED.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that the basis for his separation was for fraudulent enlistment. Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews 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.  Furthermore, there is no evidence in the record, nor has the applicant produced any evidence to support the contention that he may have been unjustly discriminated.  The applicant’s statements alone do 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 and a change to the narrative reason for his discharge.

5.  Moreover, the applicant included a third party statement with the application, which explained the circumstances surrounding the events of his discharge.  However, the person providing the character reference statement was not in a position to fully understand or appreciate the expectations of the applicant’s chain of command.  As such, the statement does not provide any evidence sufficiently compelling to overcome the presumption of regularity. 

6.  The applicant desires to reenlist in the Army.  However, he was appropriately assigned a reentry code of 3.  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.

7.  The applicant contends that an upgrade of his discharge would allow any benefits, which would include educational benefits through the use of the GI Bill.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  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.

8.  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.  

9.  Furthermore, the service record indicates that someone in the discharge process erroneously entered the reason for separation as misconduct, authority as AR 635-200, paragraph 14-12a, and SPD code of JKN.  However, the separation authority approved the discharge under the provisions of AR 635-200, paragraph 14-12c, for misconduct (serious offense).

10.  Therefore, the characterization of service being both, proper and equitable, recommend the Board deny relief.  However, recommend the Board make the following changes:  
      
      a. change block 25, separation authority to AR 635-200, paragraph 14-12c
      b. change block 26, separation code to JKQ




























SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: 	Record Review	   Date:  7 June 2013          Location: Washington, DC

Did the Applicant Testify?  NA 

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:		Yes
Change Characterization to:	No Change
Change Reason to:			Misconduct 
Change Authority for Separation:	AR 635-200, Chapter 14-12c
Change RE Code to:		NA
Grade Restoration to:		NA
Other:					Change Separation Program Designator (SPD) code JKQ




















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)		AR20130001447



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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