IN THE CASE OF:  	Mr. 

      BOARD DATE:  	26 June 2013

      CASE NUMBER:  	AR20130002155
___________________________________________________________________________

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

2.  The applicant states through his attorney, in effect, the following contentions:

     a.  His administrative discharge was improper because it was based in part on a Company Grade Article 15 for minor misconduct that was imposed during a previous enlistment; a violation of AR 635-200, Chapter 3-8. 

     b.  His discharge was improper because no rehabilitative efforts were made or offered prior to his separation.  

     c.  His discharge was improper and inequitable because his military record did not meet the definition of a pattern of misconduct; his commander’s decision to process him for an administrative discharge, which denied him the opportunity to have his pending Medical Evaluation Board (MEB) review for service-connected injuries.  

     d.  His discharge was improper and inequitable because his commander failed to consider diagnosed service-connected medical conditions in the proposed administrative separation, violating AR 635-200.  

     e.  His discharge was improper because his DD Form 2648, Preseparation Counseling Checklist, erroneously stated his separation from the service was voluntary, when in fact he was involuntarily separated. 

     f.  His discharge was improper due to procedural and substantive errors that occurred during his administrative separation board hearing, denying him and his counsel the ability to prepare and present a defense. 

     g.  His discharge and characterization of service is inequitable because his total record of service and conduct demonstrate any characterization other than an honorable discharge is clearly inappropriate. 












DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		30 January 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			14 June 2011
d. Reason/Authority/SPD/RE Code:	Pattern of Misconduct , AR 635-200, Chapter14, 						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			HHOC, Division Special Troops Battalion, 							(Rear) (Provisional),Fort Stewart, GA 
f. Current Enlistment Date/Term:	10 October 2007, 6 years
g. Current Enlistment Service:	3 years, 8 months, 5 days
h. Total Service:			13 years, 5 months, 10 days				
i. Time Lost:				None
j. Previous Discharges:		USAR-(970929-980901)/UNC									         (Break In Service)										USAR-(981208-990113)/NA									IADT-99014-990526)/UNC										USAR-(990527-050215)/HD									RA-(050216-071009)/HD
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	35M20, Human Intelligence Collector
m. GT Score:				126
n. Education:				14 years
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (070321-080604)
q. Decorations/Awards:		ARCOM, AGCM, NDSM, ICM-W/CS, GWOTSM, 						ASR, OSR, MUC
r. Administrative Separation Board: 	Yes
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the U.S. Army Reserve on 29 September 1997, for a period of 8 years.  He was 18 years old at the time of entry and HS Graduate.  He was discharged on       1 September 1998, with an uncharacterized discharge.  He reenlisted in the U.S. Army Reserve on 8 December 1998, for a period of 8 years.  He was 19 years old at the time of entry.  He was trained in and awarded military occupational specialty (MOS) 92Y10, Unit Supply Specialist and received an honorable discharge.  He enlisted in the Regular Army on 16 February 2005, for a period of 5 years.  His last reenlistment was on 10 October 2007, for a period of 6 years and he was 28 years old at the time. He subsequently trained in and was awarded MOS 35M20, Human Intelligence Collector and achieved the rank of SGT/E-5.  His record also shows he served a combat tour and earned several awards including an ARCOM and an AGCM.  He was serving at Fort Stewart, GA, when his discharge was initiated.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 2 March 2010, 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 a pattern of misconduct.  Specifically for the following offenses:

     a.  receiving a Company Grade Article 15 for insubordinate conduct towards a noncommissioned officer (NCO) on numerous occasions (070625)

     b.  receiving the second Company Grade Article 15 for disrespecting a superior commissioned officer, failing to report, disobeying an NCO, dereliction of duty twice and failing to obey a lawful order (090722)

     c. receiving a Field Grade Article 15 for willfully disobeying an NCO, making a false official statements, and wrongfully using provoking gestures toward an NCO (100210)

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

3.  The applicant’s election of rights is not contained in the available record and government regularity prevails in the discharge process.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate and senior commanders reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  

4.  On 26 March 2010, the separation authority disapproved the applicant’s conditional waiver request and referred the case to an administrative separation Board.  On 1 April 2010, the applicant was notified to appear before an administrative separation board and advised of his rights.  

5.  On 16 June 2010, the administrative separation board convened and the applicant appeared with his civilian counsel.  The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions.

6.  The separation authority approved the findings and recommendations of the administrative separation board directing the applicant’s discharge with a characterization of service of under other than honorable conditions.  However, the separation authority directed issuance of a general, under honorable conditions discharge and the applicant’s MEB packet would not be processed to the Physical Evaluation Board (PEB).

7.  Furthermore, the date on the separation authority’s memorandum appears to be erroneous. 

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

9.  The applicant was discharged with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, a Separation Program Designator code (SPD) of JKA and an RE code of 3.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 10 February 2010 for willfully disobeying an NCO, making false official statements, and wrongfully using provoking gestures toward an NCO; the punishment consisted of reduction to E-4 (suspended), forfeiture of $1,146 pay x 2 months (suspended) , extra duty for 45 days and restriction for 45 days (suspended), (FG).  

2.  An Article 15, dated 22 July 2009 for being derelict in the performance of his duties x 2 (080922-081003, 081006-081009); without authority, failed to go at the time prescribed to his appointed place of duty (081006); behaved with disrespect toward LTC M (090129); willfully disobeyed a lawful order from SFC C x 2 (090618, 090618); the punishment consisted of forfeiture of $623 pay x 1 month, extra duty for 14 days and restriction for 14 days, (CG).

3.  The applicant received nine negative counseling statements completed on 22 October 2008 through 12 January 2010, for failing to take the flu shot, failing to complete a battalion task, failing to complete post deployment health reassessment, lying to an officer, failing to follow a direct order, failing to use proper sick call procedures, provoking speech or gestures and insubordination.

4.  The record of evidence contains the applicant’s administrative separation board proceedings. 

5.  The record contains an NCOER covering the period of 1 May 2008 through 30 April 2009, which the applicant was rated as fully capable, 4/3, fair/superior.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293/ with a continuation of issues, one page; Attorney’s Letter; Recommendation Memorandum, two pages; Memorandum, Defense Counsel, two pages; Medical Evaluation Board Proceedings (MEB), five pages; DA Form 3349 (Physical Profile); Support Statement; Counseling Checklist, three pages; DA Form 1256 (Incentive Award Nomination and Approval);  Citation, Achievement Medal for Civilian Service; two Letters of Recommendation; Support Statements, applicant’s parents; Letter, Armstrong Atlantic State University; Applicant’s Statement, discharge recommendation, two pages; and two DD Forms 214.

POST-SERVICE ACTIVITY: 

The applicant served as a civilian member of the Counter Improvised Explosive Device Analyst Team (CIAT) for nine months while deployed to Operation Enduring Freedom.  He also served as the lead Human Intelligence (HUMINT) analyst.

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, 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 of his discharge and a change to the narrative reason for separation was carefully considered.  However, after examining his military record, the issues 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 pattern of 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 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, for misconduct.  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 "JKA" will be assigned an RE Code of 3.  

6.  The applicant contends his administrative discharge was improper because it was based in part on a Company Grade Article 15 for minor misconduct that was imposed during a previous enlistment; a violation of AR 635-200, Chapter 3-8.  However, AR 635-200 provides that commanders may consider incidents from a prior period of enlistment on the issue of retention or separation.  The separation authority’s decision memorandum does not state the prior incident was not considered for the purpose of characterization.  Specifically, an Article 15 the applicant received on 25 June 2007.  The government’s presumption of regularity cannot be applied in this case because the command used some 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 is an issue of fact that the Army Discharge Review Board must consider when determining the applicant’s characterization of service.  The applicant’s record of service was marred by two Article 15s for violations of the Uniform Code of Military Justice (UCMJ) and nine negative counseling statements.

7.  The applicant further contends his discharge was improper because no rehabilitative efforts were made or offered prior to his separation.  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.  After reviewing the applicant’s discharge packet, the separation authority properly waived the rehabilitative requirements.  Moreover, 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.

8.  The applicant also contends his discharge was improper and inequitable because his military record did not meet the definition of a pattern of misconduct; his commander’s decision to process him for an administrative discharge, which denied him the opportunity to have his pending Medical Evaluation Board (MEB) review for service-connected injuries.  The record shows the applicant received several Article 15s for violations of the UCMJ and negative counseling statements justify a pattern of misconduct.

9.  Further, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  The separation approving authority indicated in his memorandum the applicant’s MEB would not be processed to the PEB.

10.  The applicant additionally contends his discharge was improper and inequitable because his commander failed to consider diagnosed service-connected medical conditions in the proposed administrative separation, violating AR 635-200.  The evidence of record (unit commander’s recommendation memorandum), indicated in paragraph 1m and n, a mental status evaluation or psychiatric report and a report of medical examination were included as enclosures in the separation packet. 

11.  The applicant contends his discharge was improper because his DD Form 2648, Preseparation Counseling Checklist, erroneously stated his separation from the service was voluntary, when in fact he was involuntarily separated.  The DD Form 2648 (Preseparation Counseling Checklist) is an unofficial document in the discharge process used to record preseparation services and benefits requested by and provided to Service members, to identify preseparation counseling areas of interest as a basis to develop an individual transition plan (ITP).  The manner in which the form is completed has no bearing on whether the applicant receives VA benefits or what benefits he receives.

12.  The applicant further contends his discharge was improper due to procedural and substantive errors that occurred during his administrative separation board hearing, denying him and his counsel the ability to prepare and present a defense.  AR 635-200, paragraph      2-10, states a Soldier under military control will be notified in writing of the convening date of the board at least 15 days before the hearing.  The applicant was notified in writing on 1 April 2010, the board convened 16 June 2010, exceeded the 15 day regulation requirement.   

13.  The applicant also contends his discharge and characterization of service is inequitable because his total record of service and conduct demonstrate any characterization other than an honorable discharge is clearly inappropriate.  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 under review 

14.  Furthermore, his record documents acts of significant achievement without any acts of valor; however, did not support the issuance of an honorable discharge by the separation authority and it does not support an upgrade to an honorable discharge at this late date.  

15.  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:  26 June 2013      Location: Washington, DC

Did the Applicant Testify:  NA

Counsel:   yes [ redacted ]

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)		AR20130002155



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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