IN THE CASE OF:  	

      BOARD DATE:  	29 July 2013

      CASE NUMBER:  	AR20130002455
___________________________________________________________________________

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 improper.  The evidence indicates the applicant requested an administrative separation board and was entitled to one because he had over 6 years of total active and reserve military service at the time of initiation of the separation action.  The Board noted that an administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects the applicant did not receive an administrative separation board and did not waive it.  Denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable, change to the narrative reason for separation to Secretarial Authority, RE-Code 1, with corresponding SPD code JFF.




      
      
      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 the characterization of his service from general, under honorable conditions to fully honorable, to change the narrative reason for his discharge, and to modify the reentry code.  

2.  The counsel on behalf of the applicant submitted an extensive counsel-authored statement with a detailed discussion of the events and circumstances surrounding his discharge, including references of several case cites.  In pertinent part it states, in effect, the applicant challenges the propriety of his discharge, because he had an accumulative six years, seven months, and eight days of total military service at the time of his discharge; the chain of command did not inform him that he was entitled to an administrative separation board hearing as a result of having an excess of six years total military service, but instead the servicing military counsel erroneously directed the applicant to sign a document that incorrectly stated that he has less than six years of service; and given the applicant had a prior excellent military record and the alleged misconduct occurred during a single-time frame, he should have been provided a rehabilitative transfer for a reasonable opportunity to demonstrate rehabilitation.  The applicant has been actively employed or in school and has been a model citizen and an excellent employee, since his discharge.  He has received a nursing diploma from a community college in 2007.  He is a licensed practical nurse, and employed with a health care services.  
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	1 February 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	27 February 1998
	d.	Reason/Authority/SPD/RE Code:	Misconduct, AR 635-200, Paragraph 14-12c, JKQ 
			RE-3
	e.	Unit of assignment:	C Company, 2nd Battalion, 504th Parachute Infantry 
			Regiment, 82nd Airborne Division, Fort Bragg, NC
	f.	Current Enlistment Date/Term:	13 December 1995, 3 years
	g.	Current Enlistment Service:	2 years, 1 month, and 15 days
	h.	Total Service:	6 years, 9 months, 10 days
	i.	Time Lost:	None
	j.	Previous Discharges:	ARNG (910418-910506) / NA
			ADT    (910507-910809) / HD
			ARNG (910808-930414) / HD
			RA       (930415-951212) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	11B1P, Infantryman
	m.	GT Score:	125
	n.	Education:	HS Graduate
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	AAM-2; AGCM; NDSM; ASR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	Yes, 29 December 1999

SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 25 April 1993 for a period of 3 years and reenlisted on 13 December 1995 for a period of 3 years.  He was 21 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 11B1P, Infantryman.  His record documents no oversea assignment, but indicates he earned two AAM awards.  At the time his discharge proceedings were initiated he was serving at Fort Bragg, NC.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 26 November 1997, 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 for receiving a FG Article 15 for committing an offense of disrespecting a commissioned officer (970731).

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge.

3.  On 2 December 1997, 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 9 December 1997, 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 27 January 1998, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct, 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.  Article 15, dated 2 December 1997, disobeying an NCO (971023), being disrespectful in deportment toward an NCO x2 (971023, 971027), being derelict in performance of duties (971027), communicating certain indecent language toward an NCO (971023).  The punishment consisted of 14 days of extra duty and restriction, (CG).

2.  DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ) - vacation of suspended punishment, dated 15 September 1997, for being disrespectful in deportment toward an NCO (970822), the suspended reduction in grade to E-1 was vacated.

3.  Article 15, dated 31 July 1997, for behaving disrespectful toward his superior commissioned officer (970603).  The punishment consisted of reduction to the grade of E-1 (suspended), forfeiture of $450 per month for two months, 45 days of extra duty and restriction, (FG). 

4.  Eight negative counseling statements, dated between 16 June 1997 and 27 October 1997, for violating safety parameters; pattern of misconduct after arriving at C Company on 12 August 1997; showing up to work late; failing to participate in physical fitness training; failing to train with squad; disobeying a lawful order; and disrespecting an NCO.

5.  Memorandum, dated 17 November 1997, subject: Dial 6-Boss, that details the applicant’s chain of command had denied his leave while he purchased an airline ticket and an impending separation for pattern of misconduct.  It further indicated the applicant was a rehabilitative transfer from B Company, 2nd Battalion, 504th Parachute Infantry Regiment in August 1997.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided with his application his self-authored statement and his counsel-authored statement; DD Form 214 for service under current review; ARNG discharge orders, dated 19 January 1994; memorandum, dated 27 August 1997, subject: Announcement of Removal Board; ERB; memorandum, dated 3 November 1997, subject: Letter of Intent; memorandum, dated 17 November 1997, subject: Dial 6-Boss; separation packet; AGCM certificate for 15 April 1993 through 14 April 1996; AAM certificate, dated 13 December 1996, with recommendation; AAM certificate, dated 7 March 1997; superior APFT commendation letter, dated 6 March 1997; orders awarding AAB and parachutist badge, dated 22 September 1994, 19 May 1996, respectively; certificates of completing course, dated 10 December 1997, 9 July 1997, 4 November 1996, 15-19 July 1996, respectively; transcript of Army correspondence course program, dated 6 March 1996; DD Form 214, dated 9 August 1991; ARNG report of separation, dated 14 April 1993, and orders, dated 19 January 1994; Honorable Discharge certificate, dated 12 December 1995; Oath of Reenlistment certificate, dated 13 December 1995; resume; practical nursing diploma, dated 12 July 2007; licensed practical nurse certificate, dated 30 November 2007; two character reference letters.

POST-SERVICE ACTIVITY: 

The counsel on behalf of the applicant states, in effect, that the applicant has been actively employed or in school and has been a model citizen and an excellent employee, since his discharge.  He has received a nursing diploma from a community college in 2007.  He is a licensed practical nurse, and employed with a health care services.    

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 or 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.

2.  After a careful review of all the applicant’s military records, the issues, and documents submitted with the application, the discharge appears to be improper.  

3.  The service record confirms that when the unit commander notified the applicant of initiation of discharge proceedings on 26 November 1997, the applicant had completed a total of over 6 years service from the day he enlisted in the Army National Guard on 18 April 1991, according to the Army National Guard (ARNG) report of separation, dated 14 April 1993.  In accordance with AR 635-200, the applicant was entitled to a hearing before an administrative separation board because he had 6 or more years of total active and reserve service on the date of initiation of recommendation for separation.  Per AR 635-200, this includes creditable service in any US military component, such as RA, ARNGUS, USAR (including IRR and Delayed Entry Program), USN, and USAF.  The evidence of record confirms that the applicant consulted with legal counsel and indicated he has less than 6 years of total active and reserve military service, but made no election of having the right to a hearing before an administrative separation board.  An administrative separation board is a right and required under the provisions of Army Regulation 635-200.  The record reflects that the applicant did not receive an administrative separation board and denial of such a board constituted a prejudicial error to the rights of the applicant and as a result the discharge is improper.  

4.  The records show the proper discharge and separation procedures were not followed in this case.  

5.  Therefore, the discharge being improper, recommend the Board grant full relief in the form of an upgrade of a change to the characterization of service to “Honorable,” and a change to the narrative reason for separation to “Secretarial Authority,” under the provisions of Chapter 5, paragraph 5-3, AR 635-200, with a corresponding separation (SPD) code of "JFF."  This action does not entail a change to the reentry eligibility (RE) code; however, the Board can consider it.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: 	Records Review      Date:  29 July 2013     Location: Washington, DC

Did the Applicant Testify?  No 

Counsel:  Yes



Board Vote:
Character Change:  5	No Change:  0
Reason Change:	5	No Change:  0
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:			Yes
Change Characterization to:		Honorable
Change Reason to:				Secretarial Authority
Change Authority for Separation:	AR 635-200, Chapter 5-3, with corresponding SPD code of JFF
Change RE Code to:			RE-Code 1
Grade Restoration to:			No
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)		AR20130002455

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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