IN THE CASE OF:  	

      BOARD DATE:  	6 May 2013

      CASE NUMBER:  	AR20130004289
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony, and considering the Discussion and Recommendation which follows, the Board determined the discharge to be 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 his reentry (RE) code.

2.  The applicant states through counsel, in effect, that he is requesting an expedited personal appearance before the Army Discharge Review Board.  He is attempting to change his reentry code so that he may accept an ROTC scholarship.  He has the support of the ROTC leadership and has distinguished himself among his cadre despite not being able to contract.  He believes that the discharge was inappropriate and his actions after being discharged and his efforts to rejoin the Army are a testament to his ethic and desire to serve as an officer in the US Army.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		18 January 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			1 April 2011
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 14-12c 						JKQ, RE-3        
e. Unit of assignment:			HHC, 296th Brigade Support Battalion, Joint Base 						Lewis-McChord, WA
f. Enlistment Date/Term:		26 October 2009, 3 years and 24 weeks
g. Current Enlistment Service:	1 year, 5 months, 6 days
h. Total Service:			1 year, 5 months, 6 days
i. Time Lost:				None
j. Previous Discharges:		None 
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	92G10, Food Service Operations Specialist
m. GT Score:				88
n. Education:				2 years of college
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:		Yes	
u. Prior Board Review:			Yes, 14 November 2012, denied
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 26 October 2009, for a period 3 years and 24 weeks, he was 23 years old at the time and had two years of college.  When his discharge proceedings were initiated he was serving at Joint Base Lewis-McChord, WA.  The record does not show any significant achievements or meritorious awards.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  The record shows that on 4 February 2011, 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 (serious offense), specifically for being charged by a civilian court with assault in the second degree and domestic violence.  
      
2.  Based on the above misconduct the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.  

3.  The applicant was given 7 days to consult with legal counsel, and seek advice as to the impact of the discharge action.  The record contains an unsigned election of rights and a commander’s statement which indicates the applicant had plenty of opportunity to seek counsel.  On 16 February 2011, the applicant provided the unit commander with a memorandum from the Trial Defense Counsel stating he could not see an attorney until 
23 February 2011.  Since the applicant did not meet the 7-day suspense established by the notification memorandum, the unit commander continued with the discharge proceedings.  Subsequently, the unit commander 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.  On 27 February 2011, 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 on 1 April 2011, for misconduct (serious offense), under the provisions of Chapter 14-12c, with an SPD code of JKQ and an RE code of 3.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  The record does not contain any actions under Article 15 of the Uniform Code of Military Justice.

2.  One negative counseling dated 21 June 2010 for domestic violence.

3.  An MP Report dated 1 July 2010, that shows the applicant as the subject of an investigation for criminal assault.

4.  A civilian court document dated 14 September 2010 that charges the applicant with assault in the second degree.

EVIDENCE SUBMITTED BY THE APPLICANT 

Counsel’s Letters dated 14 March 2013 and 13 January 2013.

POST-SERVICE ACTIVITY: 

The applicant states that he is pursuing an ROTC scholarship and is  attending a university program.

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, paragraph 14-12c, for 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 a RE Code of 3.



DISCUSSION AND RECOMMENDATION:

1. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  However, after examining the applicant’s service record, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The applicant contends that his discharge was inappropriate; however, 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 his misconduct of assault in the second degree and domestic violence, the applicant diminished the quality 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 the applicant’s service mitigated the misconduct or poor duty performance.  

4.  The applicant contends that since leaving the Army he has been attending a university program and would like to accept an ROTC scholarship in order to become a commissioned officer.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  Further, the Board does not grant relief solely for the purpose of enhancing employment opportunities.  

5.  The applicant has requested a change to the reentry code (RE) in order to rejoin the Army as a commissioned officer.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on AR 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned a RE code of 3.  There are no basis upon which to grant a change to the reason or to the RE code.  A 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. 

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:  Personal Appearance  	Date: 	6 May 2013	Location: Washington, DC

Did the Applicant Testify?   Yes

Counsel:  Yes

Witnesses/Observers: Battalion Commander; Friend; Instructor; Mother.

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:
In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

Board Vote:
Character  	Change:  1	No Change:  4
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






















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 20130004289

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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