IN THE CASE OF:  	Mr. 

      BOARD DATE:  	12 August 2013

      CASE NUMBER:  	AR20130002723
___________________________________________________________________________

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 that 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 a change to the narrative reason for his discharge.

2.  The applicant states, in effect, that members of his chain of command were committing adultery and that upon his return from leave he found out his wife had been having sex with Soldiers, two of them from her chain of command and one from his.  He felt ashamed.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		7 February 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			19 July 2001
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, 14-12c(2), JKK, RE-3        
e. Unit of assignment:			HSC, 94th Engineer Bn, Vilseck, Germany
f. Current Enlistment Date/Term:	9 September 1999, 4 years
g. Current Enlistment Service:	1 year, 10 months, 11 days
h. Total Service:			1 year, 10 months, 11 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	88M10, Motor Transport Operator
m. GT Score:				108
n. Education:				HS Graduate
o. Overseas Service:			Kosovo, Germany
p. Combat Service:			None
q. Decorations/Awards:		ASR
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 9 September 1999, for a period of 4 years.  He was 18 years old at the time of entry and was a high school graduate.  He was serving at Vilseck, Germany, when his discharge was initiated.  His record does not show any acts of valor or meritorious achievements.

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence shows that on 26 June 2001, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct-commission of a serious offense, specifically for wrongfully using marijuana and driving while drunk.

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 27 June 2001, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit 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 of the separation with a general, under honorable conditions discharge.  

4.  On 12 July 2001, 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 19 July 2001, for misconduct, under the provisions of Army Regulation 635-200, paragraph 14-12c(2), with an SPD code of JKK and an RE code of 3.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  Field Grade Article 15, issued on 4 May 2001, for driving while intoxicated (010129), wrongfully using marijuana (010306), and breaking restriction (010129).  His punishment consisted of forfeiture of pay in the amount of $521.00 per month for two months, 45 days of extra duty and restriction.

2.  Field Grade Article 15, issued on 21 August 2000, for disobeying a lawful order from an NCO (000803), and for being drunk on duty (000803).  His punishment consisted of reduction to the grade of E-1, extra duty and restriction for 45 days, and an oral reprimand.

3.  Summarized Article 15, issued on 19 May 2000, for missing formation (000516).  His punishment consisted of 14 days of extra duty and restriction.

4.  Six negative counseling’s dated between 19 May 2000 and 19 March 2001, for offenses related to failures to report to his designated place of duty, disobeying lawful orders, being AWOL, and improper operation of a motor vehicle.

5.  An MP Report dated 22 February 2001, which shows the applicant was the subject of an investigation for drunk driving.

6.  The record also contains a positive urinalysis coded as PO (Probable Cause), for marijuana, dated 6 March 2001.



EVIDENCE SUBMITTED BY THE APPLICANT:  

The applicant states the evidence in support of this request is in the form of sworn statements and confessions to the CID.  However, he provided no such evidence with his application.

POST-SERVICE ACTIVITY: 

None were provided 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), in effect at the time, 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 "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c(2), for misconduct.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKK" will be assigned an RE Code of 3. 




DISCUSSION AND RECOMMENDATION:

1. The applicant’s request for a change to the narrative reason of his discharge was carefully considered.  However, after examining the applicant’s service record and the issues submitted with the application, there are insufficient mitigating factors to merit a change to the reason or an upgrade of the applicant's characterization of service.  Although the applicant did not properly annotate the enclosed application requesting a possible discharge upgrade, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28.  It stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of 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.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a Soldier.  The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of 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 members of his chain of command were committing adultery and that upon his return from block leave he found out his wife had been having sex with Soldiers, two of them from her chain of command and one from his.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  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.  

5.  The applicant requests a change to the narrative reason for the discharge.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c(2), 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 " and the separation code is "JKK."  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.  
6.  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:  Record Review	  Date:  12 August 2013	Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None?????

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 RE Code to:		NA
Grade Restoration to:		NA
Change Authority for Separation:	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	UOTH - Under Other Than                           			               Honorable
ADRB Case Report and Directive (cont)		AR 20130002723

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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