IN THE CASE OF:  	Mr. 

      BOARD DATE:  	7 June 2013

      CASE NUMBER:  	AR20130003793
___________________________________________________________________________

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 a change to his narrative reason for discharge.

2.  The applicant states, in effect, he was discharged for not having a security clearance at the time of his separation board 30 August 2012; however, his clearance was reinstated on         26 September 2012.  He contends his command did not wait until it was properly understood he did not have a clearance to effectively perform his job.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		26 October 2012
b. Discharge received:			Honorable
c. Date of Discharge:			16 October 2012
d. Reason/Authority/SPD/RE:		Unsatisfactory Performance, AR 635-200 
      Chapter 13, JHJ, RE-3
e. Unit of assignment:			HHC, 2d MI, APO AE
f. Current Enlistment Date/Term:	18 November 2009, 6 years
g. Current Enlistment Service:  	2 years, 10 months, 29 days
h. Total Service:			23 years, 5 months, 1 day (based on documents 						found in the record)
i. Time Lost:				None
j. Previous Discharges:		USAR-890516-890906/NA										RA-890907-940505/HD										USARCG-940506-970404/NA									USAR-970405-041014/NA										OAD-041015-060206/HD										USAR-060207-070214/HD										RA-070215-091117/HD			
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	42A10, Human Resources Specialist
m. GT Score:				94
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		ARCOM-2, AAM-2, AGCM-2, ARCAM, ICM-w/CS 						NDSM-2, GWOTSM, ASR, OSR-3, AFRM-w/M 						Device, CIB
r. Administrative Separation Board: 	Yes
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No




SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 15 February 2007, for a period of 3 years after serving 17 years, 8 months, and 29 days of combined service in the USAR and Regular Army.  On 18 November 2009, he reenlisted for 6 years; he was 39 years at the time.  His record indicates he served in Germany and Iraq and achieved the rank of SPC/E-4.  He earned two ARCOM's, two AAM's, two AGCM's, an ARCAM, and the CIB.  The applicant completed         23 years, 5 months, and 1 day of total active duty and reserve service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record shows that on 3 July 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 13, AR 635-200, by reason of unsatisfactory performance for the loss of his security clearance which caused the loss of his MOS qualifications.

2.  The unit commander recommended that the applicant be retained on active duty; however, no recommendation for characterization was indicated if retention was denied; the applicant was advised of his rights.  

3.  On 12 July 2012, the applicant consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board, contingent upon being retained on active duty and receiving a reclassification of his MOS.  The applicant submitted a statement on his own behalf.  The unit commander subsequently recommended retention on active duty.  The intermediate commander reviewed the proposed action and recommended the applicant be retained with approval of the conditional waiver.

4.  On 6 August 2012, the separation authority, after careful consideration of the applicant's separation packet and recommendation of the chain of command, denied the applicant's request for conditional waiver of his separation.  An administrative separation board was appointed to determine whether the applicant should be separated under the provisions of AR 635-200, Chapter 13.

5.  On 15 August 2012, the applicant was notified to appear before an administrative separation board and advised of his rights.  

6.  On 30 August 2012, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with characterization of service of fully honorable.

7.  On 24 September 2012, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of fully honorable.


8.  The applicant was discharged from the Army on 16 October 2012, with a characterization of service of honorable under the provisions of Chapter 13, AR 635-200, for unsatisfactory performance, with a Separation Program Designator code (SPD) of JHJ and an RE code of 3. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Memorandum, dated 20 April 2011, subject "Intent to Deny Sensitive Compartmented Information (SCI) Access Eligibility and Revoke Security Clearance.  The applicant's access to classified information was suspended pending a final decision.  The memorandum informed the applicant that security concerns found on his credit report revealed delinquent accounts.

2.  Memorandum, dated 23 February 2012, subject "Determination of Sensitive Compartmented Information (SCI) Access/Security Clearance Ineligibility;" which informed the applicant that because of his failure to provide documentation from his creditors updating his delinquent accounts and for additional delinquent and collection accounts that were previously unlisted, denied his SCI access eligibility and revoked his security clearance.

3.  Article 15, dated 26 March 2012, for failure to go at the time prescribed to his appointed place of duty (120111), disrespect in language toward a noncommissioned officer (120105), disobeying a lawful order from a noncommissioned (120123), treating a noncommissioned with contempt (120110), dereliction in the performance of his duties x 2 (120105 and 120110), and disobeying a lawful general regulation between (111101 and 120223).  The punishment consisted of reduction to the grade of E-3 and restriction for 14 days, (CG).

4.  Military Police Report's dated between 13 February 2007 and 28 October 2007; 

a.  13 February 2007, that indicated the applicant was the subject of an investigation for failure to pay just debt and larceny by means of check/making and uttering a worthless check-over 100.00 (off post).

b.  14 July 2007, that indicated the applicant was the subject of an investigation for drunken driving (Article 111, UCMJ), wrongful appropriation of government vehicle (Article 121, UCMJ), improper lane change, failure to obey order or regulation, failure to obey a order or regulation, operating a USAEUR plated vehicle without a USAEUR operator license and allowing a non USAREUR licensed operator to operate a USAREUR plated vehicle (Article 92 UCMJ),(off post).

c.  15 August 2007, that indicated the applicant was the subject of an investigation for failure to maintain insurance on a USAREUR plated vehicle (AER 190-1), (off post).

d.  19 September 2007, that indicated the applicant was the subject of an investigation for operating a USAREUR plated vehicle with a revoked drivers license (AER 190-1) (off post).
e.  28 October 2007, that indicated the applicant was the subject of an investigation for driving while mentally impaired (AR 190-1) (3rd offense), traffic violation, driving a USAREUR plated vehicle with a suspended operator's license (AE 190-1) (2nd offense), traffic accident, failure to maintain control and allowing an unlicensed driver to operate a USAREUR plated vehicle (AE 190-1), false official statement (Article 107, UCMJ) (off post).

5.  Eleven negative counseling statements dated between 10 January 2011 and 1 February 2012, concerning his disrespectful behavior and substandard military bearing, failure to meet appointed deadlines, failure to be in his appointed place of duty, continuous lack of military bearing offenses, and security violations.
      
EVIDENCE SUBMITTED BY THE APPLICANT:

A copy of a memorandum, dated 4 September 2012, subject "Request to Disapprove Separation Board Finding (PFC R.W.)", memorandum, dated 26 September 2012, subject "Appeal of Security Clearance Revocation and Sensitive Compartmented Information (SCI) Access Ineligibility", memorandum for record, dated 15 October 2012, subject "Administrative Separation Board, PFC R. W.", email document, dated 12 October 2012, reference the command's election not to rescind his separation order, enlisted record brief, dated 12 October 2012.

POST-SERVICE ACTIVITY: 

None provided by the applicant.

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this Chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  

2.  Army policy states that a general, under honorable conditions discharge is normally considered appropriate; however, an honorable discharge may be granted in meritorious cases.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for a change to the narrative reason for the discharge was carefully considered.  However, after a careful review of the military records during the period of enlistment under review, the issue and documents he submitted, there are insufficient mitigating factors to merit a change to the narrative reason for the discharge.

2.  The reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 13, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this Chapter is "Unsatisfactory Performance,” and the separation code is "JHJ."  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.    

3.  The applicant contends he was discharged for not having a security clearance at the time of his administrative separation board and that prior to his discharge date his clearance was reinstated and that his command did not wait for a decision on his appeal.  The evidence of record shows that on 26 September 2012, the PSAB decided to grant the applicant's appeal and approve his security clearance with SCI access eligibility with conditions.  However, the record does not indicate why the separation authority chose not to rescind the decision to separate the applicant; it can be assumed the separation authority determined the seriousness of the circumstances was such that the applicant's retention would have an adverse impact on the military, discipline, good order, and moral of the unit.  

4.  A review of the service record does not reveal any evidence of arbitrary or capricious actions by the applicant’s command.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.

5.  Therefore, the narrative reason for discharge being both proper and equitable, recommend the Board deny relief.


















SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review       Date:  7 June 2013          Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA 

Board Vote:
Character Change:  NA	No Change:  NA
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:	NA
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)		AR20130003793



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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