IN THE CASE OF: 	Mr. 

      BOARD DATE:  	12 June 2013

      CASE NUMBER:  	AR20130002066
___________________________________________________________________________

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 to be 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.  He states, in effect, that he was discharged for a case that had been declared double jeopardy by his Trial Defense Counsel.  He received a Company Grade and a Field Grade Article 15 for the same incident.  He was told to proceed with a trial by court-martial but chose not to pursue it because he thought it was not going to go that far.  By not doing so, he stayed deployed for 9 months before he heard an answer.  His chain of command requested that he remain with his unit but the request was denied at the brigade level.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		25 January 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			21 January 2009
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, Chapter 						14-12c, JKQ, RE-3
e. Unit of assignment:			HHC, 2d Bn, 6th IN Regiment, Baumholder, Germany
f. Current Enlistment Date/Term:	9 January 2007, 3 years, 21 weeks
g. Current Enlistment Service:	2 years, 0 months, 13 days 
h. Total Service:			2 years, 0 months, 13 days
i. Lost time:				None 	
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-1	
l. Military Occupational Specialty:	88M10, Motor Transportation Operator
m. GT Score:				108
n. Education:				HS Graduate
o. Overseas Service:			Germany, SWA
p. Combat Service:			Iraq (080405-090106) 
q. Decorations/Awards:		NDSM, ICM-CS, GWOTSM, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant's service record shows he enlisted in the Regular Army on 9 January 2007 for a period of 3 years and 21 weeks.  He was 19 years old at the time and a high school graduate.  He served a combat tour in Iraq.  His record does not show any significant achievements or acts of valor.
SEPARATION FACTS AND CIRCUMSTANCES

1.  On 19 November 2008, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct, for the commission of serious offenses; specifically for:

      a. Assaulted and disrespected an NCO (080714)
      b. Failed to obey orders from an NCO (080603)
      c. Disrespectful in language and deportment to two NCOs (080411) 

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

3.  On 24 November 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and indicated he would submit a statement on his own behalf (NIF).  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 10 December 2008, 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 separated from the Army on 21 January 2009, under Army Regulation 635-200, Chapter 14-12c, for misconduct (serious offense), with a general, under honorable conditions discharge, an SPD code of JKQ and an RE code of 3.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A Field Grade Article 15, issued on 14 July 2008, while at FOB Hammer, Iraq, he was disrespectful in language to an NCO (080529); wrongfully communicated a threat to an NCO (080529); assaulted an NCO who was then in the execution of his office (080529); disobeyed a lawful order from an NCO (080603).  His punishment consisted of reduction to the grade of     E-1, forfeiture of pay in the amount of $673.00 per month for 2 months, 45 days of extra duty and restriction.  The applicant appealed the amount of the forfeiture and his request was granted to reduce the forfeiture of pay by $352.00.

2.  A Company Grade Article 15, issued on 9 June 2008, for being disrespectful in deportment to an NCO (080411); disobeyed a lawful order from an NCO (080421), to attach the hydration system to his IOTV; making offensive comments, gestures and being disrespectful in language to an NCO (080422).  His punishment consisted of a forfeiture of pay in the amount of $352.00 and an oral reprimand.

3.  Eight negative counseling statements dated between 20 March 2008 and 3 June 2008, for offenses related to assault, failure to report, disobeying orders, disorderly conduct, disrespect, using provoking gestures, and leaving the tent without a buddy.

EVIDENCE SUBMITTED BY THE APPLICANT: 

None provided with the application.

POST-SERVICE ACTIVITY: 

On 5 February 2010, the applicant rejoined the Army National Guard and continues to serve to this date.  He has achieved the rank of SPC/E-4.

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).


DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his characterization and a change to the reason for his discharge was carefully considered.  However, after examining his military records and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change the reason for his discharge.  

2.  The record confirms 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 misconduct, the applicant diminished the quality his service below that meriting an honorable discharge.  

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 that he received a Field Grade and a Company Grade Article 15 for the same reasons.  However, the evidence contained in the record as listed in page 3 of this document, indicates the offenses were committed on different dates.  The command issued two Article 15s, one at company level and the other at battalion level, for multiple violations of the Uniform Code of Military Justice.  On 17 July 2008, the applicant’s counsel submitted an appeal to the Field Grade Article and argued that all known offenses should have been disposed on just one Article 15.  The appeal was granted and the imposed forfeiture of pay was reduced by $352.00.

5.  The evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.  Moreover, 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.  

6.  The applicant states his chain of command requested that he remain at his unit; however, the record shows that both, the company and battalion commanders, recommended his discharge from the Army.

7.  The applicant also requested a change to the reason for his discharge.  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 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.  

8.  The records show the proper discharge and separation authority procedures were followed in this case.  

9.  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:  12 June 2013          Location: Washington, DC

Did the Applicant Testify:	No

Counsel: 			None

Witnesses/Observers: 	NA

Board Vote:
Character  	Change:  1	No Change:  4
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)		AR 20130002066

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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