IN THE CASE OF:  	Ms. 

      BOARD DATE:  	29 May 2013

      CASE NUMBER:  	AR20130001674
___________________________________________________________________________

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 her discharge from general, under honorable conditions to honorable and a change to the narrative reason for separation.

2.  She states, in effect, she was wrongfully discharged from the military, statements from enlisted Soldiers and officers have and will attest to her service.  She desires to continue her military career. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		17 January 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			18 January 2007
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, Chapter 						14-12c, JKQ, RE-3
e. Unit of assignment:			A Detachment, 90th Personnel Support Battalion,  						Baumholder, Germany
f. Current Enlistment Date/Term:	17 April 2003, 4 years
g. Current Enlistment Service:	3 years, 9 months, 2 days 
h. Total Service:			8 years, 0 months, 6 days
i. Lost time:				None
j. Previous Discharges:		USAR-(990113-990203)/NA									IADT-(990204-990612)/UNC									USAR-(990613-030416)/HD
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	42A10, Human Resources Specialist
m. GT Score:				102
n. Education:				HS Graduate
o. Overseas Service:			Germany
p. Combat Service:			None
q. Decorations/Awards:		AGCM, NDSM, GWOTSM, ASR
r. Administrative Separation Board: 	No, Conditionally waived
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant's record shows she enlisted in the U.S. Army Reserve and was separated on    16 April 2003, with an honorable discharge.  The applicant's record also shows she enlisted in the Regular Army on 17 April 2003, for a period of 4 years.  She was 21 years old at the time of entry and a high school graduate.  She was trained in and awarded military occupational specialty (MOS) 42A10, Human Resources Specialist.  She was serving in Germany, when her discharge was initiated.  She achieved the rank of SPC/E-4.  Her record also shows she did not serve in combat and had no acts or valor; however, she earned an AGCM.
SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence contained in the applicant’s service record indicates that on 19 December 2006, 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.  being derelict in the proper performance of her duties by willfully conducting an enlisted military personnel office (EMILPO) transaction pertaining to herself (060503)
         
     b.  committing an assault consummated by battery on Ms. CT, by striking her in the back of the head with her hand (061013)

     c.  going to Ms. CT’s place of work and communicating a threat to injure her (061016)

     d.  failing to follow instructions by not removing her SPC rank (061117)

     e.  wearing unauthorized SPC rank (061122)

     f.  refusing to perform staff duty as instructed to do (061122)

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of her rights.

3.  On 20 December 2006, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of her case by an administrative separation board, and did not submit a statement on her 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 a general, under honorable conditions discharge. 

4.  On 4 January 2007, the applicant was notified to appear before an administrative separation board and advised of her rights.  On 4 January 2007, the applicant requested the board proceedings be delayed until 8 February 2007 or the next agreeable date available to the government.

5.  On 5 January 2007, the applicant again consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of her case by an administrative separation board, contingent upon her receiving a characterization of service no less favorable than general, under honorable conditions, and submitted a statement on her behalf.  

6.  The separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 
7.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  

8.  The applicant was discharged from the Army on 18 January 2007, 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), a Separation Program Designator (SPD) code of JKQ and an RE code of 3. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A Field Grade Article 15, dated 17 November 2006, for unlawfully striking CT, on the back of her head (061013); and wrongfully communicating CT, a threat to injure her (061016); the punishment consisted of reduction to E-3, extra duty for 30 days and restriction for 30 days.

2.  The record contains a Military Police Report, dated 17 October 2006, which shows the applicant was under investigation for assault consummated by battery.

3.  There are three negative counseling statements which were done on 22 November 2006 (2) and 17 October 2006 (1), for wearing the rank of SPC after being reduced to PFC, disrespecting a superior commissioned officer, and making a false official statement.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided an online application; DD Form 214; and Discharge Orders 011-01.

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 her discharge was carefully considered.  However, after examining her military records, the issues and document 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 her 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 her service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for multiple violations 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 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 requires a waiver for the applicant to reenlist.

6.  The applicant contends she was wrongfully discharged from the military.  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 she was unjustly discharged.

7.  The applicant desires to continue her military career.  She 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. 

8.  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: 29 May 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:		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)		AR20130001674



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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