IN THE CASE OF:  	Mr. 

BOARD DATE:  	23 September 2013

CASE NUMBER:  	AR20130004632
___________________________________________________________________________

Board Determination and Directed Action
1.  After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony and notwithstanding the Discussion and Recommendation which follows, the Board determined that the narrative reason for discharge is inequitable based on the overall length and quality of the applicant's service, to include his combat service (i.e., three combat tours).  

2.  Accordingly, the Board voted to change the narrative reason of the applicant’s discharge in the following manner:

     a.  block 25, separation authority changed to AR 635-200, paragraph 14-12a,

     b.  block 26, separation code changed to JKN, 

     c.  block 28, narrative reason for separation changed to Misconduct (Minor Infractions),

     d.  this action does not entail a change to the reentry eligibility (RE) code.




      
      
      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 separation to include the reentry eligibility (RE) code.

2.  He states, in effect, that he respectfully appeals the decision made on his prior records review case.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		21 February 2013
b. Discharge Received:		Honorable
c. Date of Discharge:			15 July 2012   
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 							Chapter 14-12c, JKQ, RE-3
e. Unit of assignment:			A Co, 98th Civil Affairs Bn (ABN), Fort Bragg, NC
f. Current Enlistment Date/Term:	22 July 2008, 6 years
g. Current Enlistment Service:	3 years, 11 months, 23 days 
h. Total Service:			10 years, 5 months, 3 days
i. Lost time:				None
j. Previous Discharges:		RA-(020213-040808)/HD										RA-(040809-060325/HD										RA-(060326-080721)/HD
k. Highest Grade Achieved:		E-6	
l. Military Occupational Specialty:	38B3P, Civil Affairs Spec/11B3P Infantryman
m. GT Score:				120
n. Education:				Associate’s Degree
o. Overseas Service:			Korea/Southwest Asia
p. Combat Service:			Afghanistan (080418-090107), Afghanistan 							(030116-031105), Iraq (040113-040522)
q. Decorations/Awards:		BSM, ARCOM-2, JSCM, AAM-4, AGCM-2, NDSM,						ACM-W/2 CS, ICM-W/CS, GWOTEM, GWOTSM						KDSM, HSM, NPDR, ASR, OSR-4, UNMDL							NATOMDL, CAB
r. Administrative Separation Board: 	Yes
s. Performance Ratings:		Yes
t. Counseling Statements:		No
u. Prior Board Review:			Yes








SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 13 February 2002, for a period of 3 years.  He was 18 years old at the time of entry and a high school graduate.  His last reenlistment was on       22 July 2008, for a period of 6 years and he was 25 years old at the time. He was serving at Fort Bragg, NC, when his discharge was initiated.  His record also shows that he served two combat tours and earned several awards including a BSM, ARCOM-2, JSCM, AAM-4, AGCM-2 and a CAB.  He was initially trained in and awarded military occupational specialty (MOS) 11B3P Infantryman and subsequently as a 38B3P, Civil Affairs Specialist and achieved the rank of SSG/E-6.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The unit commander’s notification memorandum and the applicant’s election of rights are not contained in the available record and the presumption of government regularity prevails in the discharge process.  The unit commander recommended separation from the Army with an honorable discharge and waiver of further rehabilitative efforts.  
         
2.  The record indicates that on 19 March 2012, an administrative separation board convened and based on an offense of attempting to bribe a Soldier not to process a leave form, recommended the applicant’s discharge with characterization of service of honorable and that it be suspended for six months.  

3.  On 5 April 2012, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of honorable and that he be transferred to the IRR.

4.  The applicant’s record does not show any record of unauthorized absences or lost time or actions under the Uniform Code of Military Justice.

5.  The applicant was discharged from the Army on 15 July 2012, with a characterization of service of honorable under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator (SPD) code of JKQ and an RE code of 3. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15 dated, 11 August 2009, for with intent to deceive, made a false official statement to 2LT H x 2(090715, 090715); wrongfully offer PFC L, the A Company clerk, the sum of $100 to not process his chargeable leave form (090218); and wrongfully endeavor to influence the testimony of SGT A, a witness before an investigation officer, by communicating to him not to give testimony to the investigating officer (090716); the punishment consisted of reduction to E-5 (suspended), forfeiture of $1,249 pay x 2 months (suspended), extra duty for 45 days and restriction for 45 days (suspended), (FG). 

2.  There are nine NCO Evaluation Reports covering the periods of 3 May 2005 through 14 July 2011, where the applicant was rated as fully capable, 2/2, successful/superior (6) and among the best, 1/1, superior/superior (3).

3.  The record did not contain any counseling statements.

4.  The administrative separation board proceedings are not contained in the available record.

EVIDENCE SUBMITTED BY THE APPLICANT:  

The applicant provided a DD Form 293, dated 14 October 2013; DOD Letter of Authorization (LOA), with a Secret Clearance, dated 6 January 2013; two (2) Memoranda for Record, Suspension of Honorable Discharge, 21 March 2012; eight (8) Character/Support Statements, dated 14 November 2012, 6 December 2011, 20 November 2012, 15 November 2012,            5 December 2011, 7 December 2011, 7 December 2011, 7 December 2011; Copy of U.S. Mission ID Card; and two DA Forms 2166-8 (NCO Evaluation Reports), dated 9 January 2012, 15 March 2011.   

POST-SERVICE ACTIVITY: 

The applicant did not provide any.

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 "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (drug abuse).

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 4.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for a change to the narrative reason for separation to include the RE code was carefully considered.  However, after examining his military records, the issue and documents submitted with the application, there are insufficient mitigating factors to merit a change to the narrative reason for separation to include RE code.  

2.  The applicant requested a change to the narrative reason for separation to include the RE code.  However, 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.  

3.  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.

4.  The applicant respectfully appeals the decision made on his prior records review case. 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 contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that the narrative reason for separation was improper or inequitable.  

5.  Further, each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge.  Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both, were improper or inequitable.  The Board determined that the narrative reason for discharge was both proper and equitable and voted to deny relief.
6.  Therefore, the narrative reason for discharge to include the RE code being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Personal Appearance   Date: 23 September 2013  Location: Washington, DC

Did the Applicant Testify:  Yes

Counsel:  Gary Myers, Daniel Conway & Associates, 76 Clark Mill Road Ware NH 03281

Witnesses/Observers: No

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  NCO Evaluations – 4 pages
	b.  Family picture – 1 page
	c.  Board Findings – 2 pages
	d.  Letters of recommendation (8) – 9 pages
	e.  Letter of authorization – 2 pages

2.  The applicant presented no additional contentions.

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:  NA	  No Change:  NA
Reason	Change:     3	  No Change:     2
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	NA
Change Reason to:			Misconduct (Minor Infractions)
Change RE Code to:		NA
Grade Restoration to:		NA
Change Authority for Separation:	AR 635-200, Chapter 14, Paragraph 14-12a
Other:					Separation Program Designator (SPD) code to JKN


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)		AR20130004632

	Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



	1