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ARMY | DRB | CY2013 | AR20130001610
Original file (AR20130001610.txt) Auto-classification: Denied
      IN THE CASE OF:  	Mr. 

      BOARD DATE:  	19 June 2013

      CASE NUMBER:  	AR20130001610
___________________________________________________________________________

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 an upgrade of his discharge characterization from general, under honorable conditions to honorable and a change to the narrative reason for the discharge.

2.  The applicant states, in effect, his discharge was inequitable because it was based on one isolated incident in over 10 years of service with no other adverse action.  He contends he served the Army proudly and without prejudice at all times.  
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		22 January 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			4 February 2005
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14, 						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			A Co, 795th MP Bn, Fort Leonard Wood, MO
f. Current Enlistment Date/Term:	31 December 2003, Indefinite
g. Current Enlistment Service:	1 year, 1 month, 4 days
h. Total Service:			12 years, 4 months, 19 days
i. Time Lost:				None
j. Previous Discharges:		USAR-920710-920915/NA										RA-920916-970507/HD										RA-970508-991221/HD										RA-991222-031230/HD
k. Highest Grade Achieved:		E-6
l. Military Occupational Specialty:	31B30, Military Police
m. GT Score:				104
n. Education:				HS Graduate
o. Overseas Service:			Korea, Bosnia
p. Combat Service:			None
q. Decorations/Awards:		ARCOM-5, AAM-2, AGCM-3, NDSM-2, KDSM, 
					AFEM, GWOTSM, NPDR-2, ASR, OSR-2, USR-2
      NATO MDL
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 16 September 1992 for a period of 5 years. He reenlisted for 6 and 6 years.  On 31 December 2003, he reenlisted for an indefinite period of service.  He was 29 years old at the time of reenlistment.  He served for a total of 12 years,      4 months, and 19 days of active service.  His service record reflects he served in Korea and Bosnia, achieved the rank of SSG/E-6, and earned five ARCOM's, two AAM's, and three AGCM's.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 18 December 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct.  Specifically for the following offenses: 

a. dishonorably failing to pay debts
b. making and uttering checks for payment of debts without maintaining sufficient funds to clear the checks in his account
c. lying to noncommissioned and commissioned officers
d. failure to follow orders of noncommissioned and commissioned officers

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

3.  On 6 January 2005, 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 a general, under honorable conditions discharge.

4.  On 11 January 2005, 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 4 February 2005, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for pattern of 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.  An service school academic evaluation report (040102-040309), shows the applicant graduated from the Drill Sergeant School Course and achieved the course standards.

2.  An NCOER with a through dated of August 2004, with an overall rating of marginal.

3.  Article 15, dated 13 September 2004, for disobeying a lawful order from a noncommissioned officer between (040831 to 040907), dishonorably failed to pay a debt in the amount of $1,536.16 from (040804 to 040831), and made and utter a dishonorable check in the amount of $685.00 (031223).  The punishment consisted of forfeiture of $605.00 for one month (suspended) and extra duty for 14 days (CG) 

4.  On 4 October 2004, the suspended sentence of forfeiture of $605.00 for one month was vacated because of a new offense of failing to pay debt in the amount of $285.00.

5.  Memorandum, dated 25 February 2005, shows the applicant was removed from the Drill Sergeant Program; effective, 8 December 2004.

6.  There are negative counseling statements dated between 31 August 2004 and                  21 November 2004 concerning issue relating to driving without insurance, failing to pay debts, recommendation for removal from the Drill Sergeant Program and recommendation for elimination from the service IAW Chapter 14.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant submitted a letter of recommendation, dated 3 March 2005.

POST-SERVICE ACTIVITY: 

None were provided by the applicant.

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, and pattern of 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.  The applicant’s request for an upgrade of the characterization and the reason for his discharge were 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 misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s service was marred by an Article 15 for multiple violations of the Uniform Code of Military Justice, vacation of suspended punishment, and several negative counseling statements.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.  

4.  The applicant contends his discharge was based on one isolated incident in over 10 years of service with no other adverse action.  The applicant’s in-service accomplishments and the quality of his service during the initial portion of the enlistment under review were duly 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 Uniformed Code of Military Justice.  

5.  The applicant 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 "Pattern of 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.  

6.  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:  19 June 2013       Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA 


Board Vote:
Character Change:  2	No Change:  3
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)		AR20130001610



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1


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