IN THE CASE OF:  	Mr. 

      BOARD DATE:  	5 June 2013

      CASE NUMBER:  	AR20130001648
___________________________________________________________________________

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 considered some adverse information from a previous period of enlistment and determined it was a harmless error and concluded the discharge was both proper and equitable, 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 from under other than honorable conditions to general, under honorable conditions and a change to the narrative reason for separation.

2.  He states, in effect, there was no serious offense committed.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		14 January 2013
b. Discharge Received:		Under Other Than Honorable Conditions 
c. Date of Discharge:			23 June 2011
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, Chapter 						14-12c, JKQ, RE-3
e. Unit of assignment:			598th Signal Company, 40th Engineer Bn, APO AE
f. Current Enlistment Date/Term:	16 March 2009, 3 years
g. Current Enlistment Service:	2 years, 3 months, 8 days 
h. Total Service:			6 years, 11 months, 9 days
i. Lost time:				None
j. Previous Discharges:		RA-(040715-090315)/HD
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	91D10, Power Generation Equipment Repairer
m. GT Score:				111
n. Education:				GED Certificate
o. Overseas Service:			Germany/Southwest Asia
p. Combat Service:			Iraq x 2 (051117-061117), (080401-090505)
q. Decorations/Awards:		ARCOM-3, NDSM, ICM-W/4 CS, GWOTSM, NPDR, 						ASR, OSR-3, MUC
r. Administrative Separation Board: 	Yes
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant's record shows he enlisted in the Regular Army on 15 July 2004, for a period of 3 years.  The document which extended his initial enlistment of 3 years until 16 March 2009 is not contained in the available record.  He was 18 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 91D10, Power Generation Equipment Repairer.  He reenlisted 16 March 2009, for 3 years and was 23 years old at the time.  He was serving in Germany, when his discharge was initiated.  He achieved the rank of SPC/E-4.  His record also shows that he served two combat tours and earned awards which included a BS and an ARCOM-3.


SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence contained in the applicant’s service record indicates that on 19 January 2011, 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.  Specifically for the following offenses:  

     a.  committing an indecent sexual act by having sexual intercourse with Ms. JB in the barrack’s kitchen while two other people were present (100307)

     b.  being derelict in the performance of his duties while responsible for the charge of quarters (100307)

     c.  failing to report for duty on divers occasions

     d.  violating a lawful general order and being drunk on duty

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 19 January 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action and voluntarily waived consideration of his case by an administrative separation board, contingent upon him receiving a characterization of service of 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 with a general, under honorable conditions discharge.  

4.  The applicant was notified to appear before an administrative separation board and advised of his rights.  

5.  On 16 May 2011, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions.

6.  On 3 June 2011, the separation authority approved the findings and recommendations of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

7.  The applicant was discharged from the Army on 23 June 2011, 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 an RE code of 3. 


8.  The applicant’s service record does not contain any documented evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A Company Grade Article 15, dated 12 May 2011, for failing to go at the time prescribed to his appointed place of duty x 2 (110502, 110429); and willfully disobeying a lawful order from a SSG (110429); the punishment consisted of forfeiture of $342 pay (suspended), extra duty for 14 days and restriction for 14 days.

2.  A Field Grade Article 15, dated 19 November 2010, for being derelict in the performance of his duties x 2 (100307, 100307); and wrongfully committed indecent conduct, by having sexual intercourse in the barrack’s kitchen with Ms. JB in the presence of two other people (100307); the punishment consisted of forfeiture of $723 pay (suspended), extra duty for 45 days and restriction for 45 days.

3.  A Field Grade Article 15, dated 13 July 2010, for failing to go at the time prescribed to his appointed place of duty (100612); the punishment consisted of reduction to E-1, forfeiture of $733 pay x 2 months (suspended), and extra duty for 30 days.

4.  A Field Grade Article 15, dated 29 April 2010, for failing to go at the time prescribed to his appointed place of duty (100422); and failing to obey a lawful order by wrongfully going out to Vilseck and leaving his weapon in the command post (CP) without permission (100410); the punishment consisted of reduction to E-3 (suspended), forfeiture of $961 pay (suspended), extra duty for 45 days and restriction for 45 days.

5.  A Company Grade Article 15, dated 22 February 2010, for being drunk and disorderly which conduct was of nature to bring discredit upon the armed forces (091229); the punishment consisted of reduction to E-3, forfeiture of $433 pay (suspended), extra duty for 14 days and restriction for 14 days.

6.  The record contains a Memorandum of Reprimand (MOR), dated 24 February 2010, for being accused of rape by a female acquaintance, (administrative).

7.  The record also contains a Military Police Report, dated 5 January 2010, which indicated the applicant was under investigation for being drunk and disorderly. 

8.  The applicant received eight negative counseling statements that were completed between 7 June 2007 and 4 May 2011, for disobeying a lawful order or regulation numerous times, missing formation, failing to report on numerous occasions, failing to meet local travel compliance, insubordinate conduct toward a warrant officer or NCO.





EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided an online application; DD Form 214; and Discharge Orders 165-0007.
POST-SERVICE ACTIVITY: 

The applicant did not provide any 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 his military record, the issue and documents 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 separation.

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 of his service below that meriting a general, under honorable conditions discharge.  The applicant’s record of service was marred by five Article 15s for multiple violations of the Uniform Code of Military Justice, a MOR and eight 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 requested a change to the narrative reason for separation.  However, 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.  Further, 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.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  

6.  The applicant contends there was no serious offense committed.  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 contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he did not commit a serious offense.  In fact, the applicant’s five Article 15s, numerous negative counseling statements, and a MOR justify commission of a serious offense.  

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:  Records Review        Date:  5 June 2013          Location:  Washington, DC

Did the Applicant Testify  NA

Counsel:  NA

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:	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)		AR20130001648



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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