IN THE CASE OF:  

      BOARD DATE:  	23 August 2013

      CASE NUMBER:  	AR20130005259
___________________________________________________________________________

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 from general, under honorable conditions to honorable and a change to the narrative reason for separation.

2.  He states, in effect, he was unjustly discharged with extreme prejudice against his character.  His chain of command sought the opportunity to get rid of him rather than assist him; and he was not given a fair chance to succeed.  His character was not accurately portrayed or properly examined as reflected by the discharge he received.  He desires a second chance to prove himself to his country, family and outside the Army.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		14 March 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			6 April 2011
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			A Co, 26th Brigade Support Battalion, 2nd Heavy 						Brigade Combat Team, Fort Stewart, GA
f. Current Enlistment Date/Term:	6 April 2009, 3 years and 23 weeks
g. Current Enlistment Service:	2 years, 1 day 
h. Total Service:			2 years, 1 day
i. Lost time:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	92A10, Automated Logistical Specialist
m. GT Score:				91
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (091028-101016)
q. Decorations/Awards:		AAM, NDSM, ICM-W/CS, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		

The applicant's record shows he enlisted in the Regular Army on 6 April 2009, for a period of 3 years and 23 weeks.  He was 19 years old at the time of entry and a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 92A10, Automated Logistical Specialist.  His record also shows he served a combat tour and earned an AAM.  He was serving at Fort Stewart, GA, when his discharge was initiated.  He achieved the rank of PV2/E-2.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates 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-commission of a serious offense.  Specifically for the following offenses:

     a.  possessing an alcoholic beverage while under the age of twenty-one (091105)

     b.  with intent to deceive, making a false official statement (091109)

     c.  failing to go to your appointed place of duty x 5 (091110, 091230, 100112, 100122, 100127) and receiving an Article 15 for these offenses

     d.  wrongfully using marijuana (101115-101215)

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 9 March 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action submitted 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 with a general, under honorable conditions discharge.  

4.  On 16 March 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 from the Army on 6 April 2011, 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), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 26 January 2011 for wrongfully using marijuana (101115-101215); reduction to E-1, forfeiture of $733 pay x 2 months, extra duty for 45 days and restriction for 45 days, (FG).

2.  An Article 15, dated 17 February 2010 for without authority, failing to go at the time prescribed to his appointed place of duty x 5 (091110,091230, 100112, 100122, 100127); with intent to deceive by making a false official statement to a SSG (091109); and knowingly possessing an alcoholic beverage under the age of twenty-one (091105); the punishment consisted of reduction to E-1, forfeiture of $723 pay x 2 months, extra duty for 45 days and restriction for 45 days (suspended), (FG).

3.  He received two negative counseling statements dated 5 January 2011 and 9 February 2011, for a positive urinalysis and initiation Chapter 14 separation action.

4.  The record of evidence contains a positive urinalysis report coded IU, dated 15 December 2010.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 293; applicant’s statement, two pages, DD Form 214; and Discharge Orders 082-0015 and Amended Discharge Orders 090-0014.

POST-SERVICE ACTIVITY: 

The applicant did not provide any 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 "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 to the narrative reason for separation was carefully considered.  However, after examining his military record, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for separation.

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 of his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by two Article 15s and two negative counseling statements.

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 requested a change to the narrative reason for separation.  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.  

5.  The applicant contends he was unjustly discharged with extreme prejudice against his character.  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 he was unjustly discharged.

6.  Further, although the applicant alleges he experienced prejudice during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.

7.  The applicant also contends his chain of command sought the opportunity to get rid of him rather than assist him; and he was not given a fair chance to succeed.  The evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

8.  Moreover, 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.

9.  The applicant additionally contends his character was not accurately portrayed or properly examined as reflected by the discharge he received.  The applicant’s record of service was marred by two Article 15s for various acts of misconduct and two negative counseling statements.  The character of the applicant’s discharge is commensurate with his overall service record.  

10.  The applicant desires a second chance to prove himself to his country, family and outside the Army.  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. 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. 

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 August 2013        Location:  Washington, DC

Did the Applicant Testify:  No

Counsel:  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 RE Code to:			No Change
Grade Restoration to:			NA
Change Authority for Separation:		No Change
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)		AR20130005259



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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