IN THE CASE OF:  	Mr. 

      BOARD DATE:  	23 October 2013

      CASE NUMBER:  	AR20130003649
___________________________________________________________________________

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 characterization from general, under honorable conditions to fully honorable and a change to the narrative reason for the discharge.

2.  The applicant states, in effect, that he feels his discharge was inequitable.  The incident  occurred over 10 years ago when he was very young and naïve.  He was married with a terminally ill special needs child and going through a divorce.  He and his wife at the time were separated and he was caught seeing another woman.  He was given a direct order not to see her again and was caught disobeying that direct order.  His service in the Army was loyal and he was an outstanding Soldier.  He excelled in many schools, training courses and fast tracked his way to SGT (E-5).  He let his emotions surrounding the divorce and the illnesses of his child blur his vision.  He has worked for the Federal Government since his discharge and has an outstanding work ethic.  His time served in the Armed Forces was the best of his career.  He is currently trying to reenlist to serve his country proudly again.  He hopes the factors of being young (20), being naive and dealing with the illness of his special needs child will all factor into his request for an upgrade.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		19 February 2013
b. Discharge Received:		General, under honorable conditions 
c. Date of Discharge:			5 December 2002
d. Reason/Authority/SPD/RE:		Misconduct, Chapter 14-12b, JKA, RE-3
e. Unit of assignment:			HHQ’s, 16th Military Police Brigade (Airborne), Fort 						Bragg, NC
f. Current Enlistment Date/Term:	29 June 1999, 5 years
g. Current Enlistment Service:	3 years, 5 months, 7 days 
h. Total Service:			3 years, 5 months, 7 days
i. Time Lost:				None 
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-5	
l. Military Occupational Specialty:	95B1P, Military Police
m. GT Score:				112
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes	
u. Prior Board Review:			None




SUMMARY OF SERVICE:		
	
The applicant's record shows he enlisted in the Regular Army on 29 June 1999, for a period of 5 years.  He was 18 years old at the time of his enlistment and had a high school diploma.  The applicant’s record does not show any significant achievements or acts of valor.  When his discharge proceedings were initiated, he was serving at Fort Bragg, NC.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 28 October 2002, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct; specifically for:

	a.  being counseled for assaulting and contributing to the delinquency of
	     a minor (020421).
	b.  receiving a Summarized Article 15 for dereliction of duty (020424). 
	c.  receiving a Field Grade Article 15 for making three false official statements and 		     providing alcoholic beverages to a minor (020517). 
	d.  being counseled for failing to obey a lawful order, possessing a drug paraphernalia, 	    	     and failing to notify his chain of command of a change to his leave address (021007).
	e.  being counseled for failing to obey a no contact order (021007).  

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 28 October 2002, 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 a general, under honorable conditions discharge.  

4.  The separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions under the provisions of AR 635-200, paragraph 14-12b, for a pattern of misconduct.  

5.  The applicant was separated on 5 December 2002, under Army Regulation 635-200, Chapter 14-12b (Misconduct), with a general, under honorable conditions discharge, an SPD code of JKA and an RE code of 3.

6.  The applicant’s record does not show any AWOL or lost time.     






EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  The applicant's disciplinary record includes the following:

	a.  A Summarized Article 15, dated 24 April 2002 for dereliction in the performance of his duties (020421).  The punishment imposed consisted of 14 days extra duty.

	b.  A Field Grade Article 15, dated 17 May 2002, for making three false official statements and providing alcoholic beverages to a minor (020517).  The punishment imposed consisted of a reduction to the grade of E-4, forfeiture of $758.00 per month suspended, and 45 days extra duty.

	c.  Numerous counseling statements covering the period 21 April 2002 through
7 October 2002, for assaulting, contributing to the delinquency of a minor, dereliction of duty, making false official statements, providing alcoholic beverages to a minor, for failing to obey a lawful order, possessing a drug paraphernalia, failing to notify his chain of command of a change to his leave address, and failing to obey a no contact order.  

2.  A Mental Status Evaluation dated 26 September 2002 indicates there was no evidence of any psychiatrically condition which would warrant disposition.  This applicant was psychiatrically cleared for any administrative action deemed appropriate by his command.

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided a DD Form 293; a DD Form 214, AMHRR documents/daughter’s medical records, post service certificates, memoranda, and certificates of training.  

POST-SERVICE ACTIVITY: 

None 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) 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 14-12b, for 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 and the reason for his discharge were carefully considered.  However, after examining his military records and the issues submitted with the application, there are insufficient factors to merit an upgrade of the applicant's discharge.  

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 repeated incidents of serious misconduct, the applicant diminished the quality of 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 his service mitigated the misconduct or poor duty performance.  

4.  The applicant contends the discharge was inequitable.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his discharge was inequitable.  In fact, the applicant’s two Articles 15 and numerous negative counseling statements justify a pattern of misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.   
5.  The applicant contends that he had good service.  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 as shown by the repeated incidents of misconduct or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.

6.  The applicant desires to rejoin the military service.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  There are no basis upon which to grant a change to the reason or to the RE code.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 

7.  The applicant contends that he was young and immature at the time of the discharge.  The record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

8.  The applicant contends that he was having family issues that affected his behavior and ultimately caused him to be discharged.  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.  

9.  The applicant also requested a change to the reason for his discharge.  However, the applicant’s discharge was directed under the provisions of Chapter 14, paragraph 14-12b, 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 "JKA."  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.  

10.  Records show the proper discharge and separation authority procedures were followed in this case.

11.  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:  23 October 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 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)		AR20130003649



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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