IN THE CASE OF:  	

      BOARD DATE:  	31 July 2013

      CASE NUMBER:  	AR20130002681
___________________________________________________________________________

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.  He states, in effect, he was not present to defend his case; and he was not allowed to seek counsel to advise him of his rights to a trial.  His chain of command was aware of the manipulative situation brought to their attention by local and military law enforcement. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		1 February 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			30 April 2010
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			Rear Detachment, 3-43rd ADA Bn, Fort Bliss, TX
f. Current Enlistment Date/Term:	8 October 2009, 4 years
g. Current Enlistment Service:	6 months, 3 days 
h. Total Service:			2 years, 3 months, 11 days
i. Lost time:				20 days
j. Previous Discharges:		RA-(980514-980810)/UNC										RA-(080401-091007)/HD
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	91B10, Wheeled Vehicle Mechanic
m. GT Score:				89
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:	

The applicant's record shows he enlisted in the Regular Army 14 May 1998 and was separated on 10 August 1998 with an uncharacterized discharge.  His record shows he enlisted in the Regular Army again on 1 April 2008 for a period of 3 years and 18 weeks.  He was 30 years old at the time of entry and a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 91B10, Wheeled Vehicle Mechanic.  He reenlisted on 8 October 2009, for a period of 4 years and was 31 years old at the time.  He was serving at Fort Bliss, TX, when his discharge was initiated.  The record does not contain any evidence of acts of valor or meritorious achievements.  He achieved the rank of SPC/E-4.

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence contained in the applicant’s service record indicates that on 22 April 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 of misconduct-commission of a serious offense.  Specifically for the following offenses:

a.  receiving a Company Grade Article for disobeying a lawful order from 1LT H (100406)

    	b.  being arrested for domestic violence and confined (091229-100120)

c.  being arrested twice since his release for outstanding warrants for breaking a no contact order

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 23 April 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board (although he was not entitled to a board) and submitted a statement on his 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.  The separation approving authority’s letter directing the applicant’s discharge is not contained in the available record, and government regularity prevails in the discharge process.  However, the DD Form 214 shows the applicant was discharged under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a characterization of service of general, under honorable conditions.  

5.  The applicant was discharged from the Army on 30 April 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 record of service indicates 18 days of time lost for being in civil confinement from 1 January 2010 until 19 January 2010.  Also, there is 1 day of lost tome from 30 April 2010 until 30 April 2010, the category of lost time could not be determined from the available record.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 29 March 2010 for disobeying a lawful order from 1LT H to abstain from alcohol while enrolled in the Army Substance Abuse Program (100207), the punishment consisted of reduction to E-3, forfeiture of $423 pay, extra duty for 14 days and restriction for 14 days, (CG).

2.  He received a negative counseling statement dated 5 April 2010, for Chapter 14 separation notification.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 149; Military Police Report, nine pages; DA Form 2823 (Sworn Statement); Form H1019 (Report of Change); two Affidavits, Ms. SJ and Ms. EC;        168th Judicial District Court, Terms and Conditions of Community Supervision; Community Service Restitution Program; and DD Form 214.

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 14-12c, 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 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 change 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 misconduct, the applicant diminished the quality of his service below that meriting an honorable discharge.  The applicant’s record of service was marred by a Company Grade Article 15 and a negative counseling statement.

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.  

6.  The applicant contends he was not present to defend his case; and he was not allowed to seek counsel to advise him of his rights to a trial.  The record of evidence shows that on 23 April 2010, the applicant consulted with legal counsel and was advised of the impact of the discharge action.


7.  The applicant further contends his chain of command was aware of the manipulative situation brought to their attention by local and military law enforcement. The applicant bears the burden presenting 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 his chain of command was manipulated.  

8.  Further, 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.

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:  31 July 2013	         Location:  Washington, DC

Did the Applicant Testify:  No

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 RE Code to:			No Change
Grade Restoration to:			NA
Change Authority for Separation:		No Change
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)		AR20130002681



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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