IN THE CASE OF:  	Mr. 

      BOARD DATE:  	28 August 2013

      CASE NUMBER:  	AR20130003930
___________________________________________________________________________

Board Determination and Directed Action

1.  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 to be both proper and equitable and voted to deny relief.  

2.  However, notwithstanding the propriety of the applicant’s discharge, the Board found that the applicant’s DD Form 214, block 27 contains the erroneous reentry code of 4.    

3.  In view of the error, the Board directed an administrative correction to block 27 to read RE-3, as required by Army Regulations.  



      
      
      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 that his general, under honorable conditions discharge be upgraded to honorable and a change to the narrative reason for discharge

2.  The applicant states, in effect, that he was unjustly discharge.  He contends he was issued a return to duty status by the convening judge at his court-martial; however, the unit he was assigned to decide to discharge him not knowing his character.  He believes, had there been input from his prior chain of command there would have been more favorable testimony on his part.  He also contends his discharge has affected his financial and social situation to where it is difficult for him to obtain his degree in electrical engineering.  An upgrade of his discharge would alleviate road blocks for him in receiving tuition assistance.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		21 February 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			12 August 2005
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 							Chapter 14, paragraph 14-12c, JKQ, RE-4
e. Unit of assignment:			PCF Spec Proc Co, Fort Knox, KY
f. Current Enlistment Date/Term:	12 March 2003, 3 years 
g. Current Enlistment Service:	2 years, 0 months, 5 days
h. Total Service:			2 years, 0 months, 5 days
i. Time Lost:				146 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	63B10, Light Wheel Vehicle Mechanic
m. GT Score:				97
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:		None
t. Counseling Statements:		None
u. Prior Board Review:			No





SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 12 March 2003, for a period of 3 years.  He was 22 years old at the time and a high school graduate.  He was serving at Fort Knox, KY when his discharge was initiated.  The record does not contain any evidence of acts of valor or meritorious achievements.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 27 June 2005, 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 (serious offense), for being tried and found guilty (050131) by a General Court-Martial of violation of UCMJ, Article 134, of possession of sexually explicit picture files of minors.

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 29 July 2005, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement on his behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  

4.  On 10 August 2005, 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 12 August 2005, 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), with a Separation Program Designator code (SPD) of JKQ and an RE code of 4. 

6.  The applicant’s service record shows he had 146 days of lost time in military confinement from 31 January 2005 until 25 June 2005, as a result of the punishment received from his General Court-Martial.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

GCM, adjudged 31 January 2005, for knowingly possessing one hard drive, in an area under the exclusive jurisdiction of the United States, between (031201 and 040316), which contained approximately 27 picture files of minors engaged in sexually explicit conduct.  The sentence consisted of reduction to the grade of E-1, forfeiture of $823.00 pay per month for six months, and confinement for 6 months.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided no additional documents.
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 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.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and a change of the reason for the discharge was carefully considered.  However, after examining the applicant’s record of service and the issues submitted with the application, there are insufficient mitigating 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 misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by his GCM for a serious violation of the Uniform Code of Military Justice.

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 requested a change to his narrative reason for separation.  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.  The applicant contends that he was unjustly discharged by a command that was unaware of his past character of service.  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 he was unjustly discharged.  In fact, the applicant’s GCM conviction of possession of sexually explicit picture files of minors justified his discharge.  

6.  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.  

7.  The applicant contends that an upgrade of his discharge would allow him to be able to receive tuition assistance for his classes.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

8.  Furthermore, the applicant’s record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4.  The discharge packet confirms the separation authority approved the discharge by reason of misconduct (serious offense).  AR 635-5-1, (Separation Program Designator Codes) and Cross Reference Table shows that a Soldier processed for misconduct (serious offense) will be assigned an SPD Code of JKQ and an RE Code of 3.  
9.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.  However, in light of the uncovered error, recommend the Board administratively change block 27, reentry code to 3, as required by Army Regulations. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date: 28 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:		Yes
Change Characterization to:	No Change
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		3
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)		AR20130003930



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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