IN THE CASE OF:	

      BOARD DATE:  	11 September 2013

      CASE NUMBER:  	AR20130002053
___________________________________________________________________________

Board Determination and Directed Action

1.  After carefully examining the applicant’s record of service during the period of enlistment under review and the Discussion and Recommendation that follows, the Board determined that the characterization of service was both proper and equitable and voted to deny relief.  

2.  Further, notwithstanding the Discussion and Recommendation regarding the narrative reason for the applicant’s discharge, the Board voted to change the applicant’s reason for discharge, authority, and separation code on the basis of equity.  The Board directed the DD Form 214 be reissued with the following changes:

      a. block 25, separation authority changed to AR 635-200, paragraph 14-12b
      b. block 26, separation code changed to JKA
      c. block 28, narrative reason for separation changed to Pattern of Misconduct 

3.  Except for the foregoing modifications, the Board determined the discharge was both proper and equitable.




      
      
      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 to change the narrative reason for his discharge.

2.  The applicant states, in effect, he was administratively separated after the summary court-martial did not find a reason to do so.  He was not given a chance for rehabilitation or retention as stated in AR 635-200, Chapter 14.  He had no prior misconduct incident.  He was recently promoted to E-5 and had letters of support that requested his retention from his first-line supervisors.  He was given just punishment by the summary court-martial as seen fit by the officer presiding over it.  Therefore, the administrative separation, character of service, and narrative reason for separation are unfair and unjust.
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	22 January 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	22 March 2010 
	d.	Reason/Authority/SPD/RE Code:	Misconduct (serious offense), AR 635-200 
			Paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	D Btry, 26th FA (TA), 3rd Bn, 27th FA Rgmt 
			(HIMARS), Fort Bragg, NC 
	f.	Current Enlistment Date/Term:	27 October 2008, 6 years
	g.	Current Enlistment Service:	1 year, 4 months, 26 days
	h.	Total Service:	2 years, 11 months, 26 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (070328-081026) / HD
	k.	Highest Grade Achieved:	E-5
	l.	Military Occupational Specialty:	13F10, Fire Support Specialist
	m.	GT Score:	106 
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Afghanistan (080110-090117)
	q.	Decorations/Awards:	ARCOM; NDSM; ACM-CS; GWOTSM; ASR; OSR 
			NATO MDL; CAB
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 28 March 2007 for a period of 4 years and reenlisted on 27 October 2008 for 6 years.  He was 20 years old at the time of entry and a high school graduate.  He served in Afghanistan.  He earned an ARCOM.  He completed 2 years, 11 months, and 26 days of active duty service.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 2 February 2010, 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 (serious offense).  Specifically for the following offenses:  

a. violating three lawful general regulations (090912, 091203)
b. making two false official statements (090912, 091204)
c. receiving DUI (070930)
d. failing to report (090813)

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

3.  On 3 February 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted 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 26 February 2010, 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 22 March 2010, 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 code (SPD) of JKQ 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.  A summary court-martial result of trial shows the applicant was found guilty of two charges:  Charge I, three specifications of violating Article 92, UCMJ, in that he violated a lawful general regulation on three separate occasions (090912 x 2, 091203), and Charge II, two specifications of violating Article 107, UCMJ, in that he made false officials statements on two separate occasions (090912, 091204).  On 16 December 2009, a sentence of reduction to E-4, forfeiture of $1,350, 45 days of restriction, was adjudged.

2.  Four negative counseling statements, dated between 13 August 2009 and 7 December 2009, for violating pass privileges-traveling beyond 100-mile radius, disobeying orders, making false official statements, lying under oath, disregarding Army Values; and missing formations.

3.  DA Form 1059, Service School Academic Evaluation Report, dated 6 August 2009, indicates the applicant achieved the course standards when he attended the “WLC” (Warrior Leadership Course).  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided no further evidence.

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 (serious misconduct).

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 and a change to the reason for 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 or a change to the narrative reason for the discharge.  

2.  Additionally, it is noted that the unit commander’s notification memorandum dated 2 February 2010, contained an offense the applicant committed in a prior period of service.  Specifically, the commander included a DUI offense that occurred on 30 September 2007.  The government’s presumption of regularity cannot be applied in this case because the command used misconduct from a previous enlistment and the separation authority did not specifically state the earlier misconduct was not considered for the purpose of characterization.  Army Regulation 635-200 specifically requires the separation authority to state on the record that the misconduct from a previous enlistment was not considered for the purpose of characterization, the absence of such a statement makes the record irregular and the Army Discharge Review Board must consider this as an issue of fact when determining the applicant’s characterization of service.

3.  Notwithstanding the aforementioned information, 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 serious incidents misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service under current review was marred by a summary court-martial for multiple violations of the Uniform Code of Military Justice and numerous negative counseling statements.

4.  The applicant contends the discharge, his character of service, and narrative reason for his discharge are unfair and unjust, and presented numerous contentions.  However, 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.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discriminated.  The applicant’s statements alone do not overcome the basis for his discharge and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.

5.  The applicant contends the incident that caused his discharge was the only one in his entire Army career.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The applicant's multiple incidents of serious misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline.
6.  The applicant contends that he had good service which included being recently promoted to sergeant/E-5 and having supporting statement from his first-line supervisors for his retention.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully 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 a summary court-martial for multiple violations of the Uniform Code of Military Justice.

7.  The applicant contends he was not given a chance for rehabilitation or retention.  However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  

8.  The applicant contends the narrative reason for the discharge should be changed because it is unfair and unjust.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general, under 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.

9.  The records reflect that the character of the applicant’s discharge is commensurate with his overall period of service that is under current review.  

10.  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:  11 September 2013      Location: Washington, DC

Did the Applicant Testify?  No 

Counsel:  None

Board Vote:
Character Change:  1 	No Change:  4
Reason Change:	3	No Change:  2
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:			Yes
Change Characterization to:		No Change
Change Reason to:				Pattern of Misconduct
Change Authority for Separation:		AR 635-200, Paragraph 14-12b
Change RE Code to:			No Change
Grade Restoration to:			NA
Other:  					SPD code of JKA





















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)		AR20130002053



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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