IN THE CASE OF:  	

      BOARD DATE:  	27 September 2013

      CASE NUMBER:  	AR20130005905
___________________________________________________________________________

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.  The applicant states, in effect, during his time in service, he experienced severe family problems and was told he would be given a fair chance which did not happen.  He was wrongfully discharged from the military.  He desires to reenlist in the Army.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date 		21 March 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			20 January 2009
d. Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Chapter 14 						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			A Co, 2-1st Infantry Regiment, Fort Lewis, WA
f. Current Enlistment Date/Term:	25 January 2007, 3 years
g. Current Enlistment Service:	1 year, 11 months, 26 days
h. Total Service:			3 years, 5 months, 3 days
i. Time Lost:				None
j. Previous Discharges:		ARNG (050818-060109)/NA									ADT (060110-060526)/HD										ARNG (060527-070124)/HD
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				92
n. Education:				GED Certificate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, ASR
r. Administrative Separation Board: 	No 
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant enlisted in the Army National Guard on 18 August 2005, for a period of 8 years.  He was 20 years old at the time of entry with a GED Certificate.  He was ordered to active duty for initial entry training on 10 January 2006.  He was discharged from the National Guard on 24 January 2007 with an honorable discharge.  He enlisted in the Regular Army on 25 January 2007, for a period of 3 years.  He was 21 years old at the time of entry with a GED Certificate.  He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman.  His record does not contain any evidence of acts of valor or meritorious achievements, and he achieved the rank of PFC/E-3.  He was serving at Fort Lewis, WA when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 27 October 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of a pattern of misconduct.  Specifically for the following offense:

     a.  losing his Military ID card x 2 (070212, 080519)

     b.  failing to go at the time prescribed to his appointed place of duty x 6 (070704, 070811, 070907, 071029, 071113, 071205)

     c.  failing to enroll his spouse in Tricare (070813)

     d.  failing to have auto insurance x 2 (071214, 080605)

     e.  failing to return to his appointed place of duty at the time prescribed (071217)

     f.  making a false official statement to SSG K (080506)

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 27 October 2008, 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.  The intermediate commander reviewed the proposed action and recommended approval of the separation with a general, under honorable conditions discharge.  

4.  On 20 December 2008, 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’s service record does not contain any evidence of unauthorized absences or time lost.  

6  The applicant was discharged from the Army on 20 January 2009, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, with a Separation Program Designator code (SPD) of JKA and an RE code of 3.



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 25 January 2008 for failing to maintain auto insurance (071214); without authority, failing to go at the time prescribed to his appointed place of duty x 2     (071205, 070907); the punishment consisted of reduction to E-2, forfeiture of $368 pay x 1 month (suspended), extra duty and restriction for 14 days, and an oral reprimand, (CG).

2.  An Article 15, dated 28 September 2007 for without authority, failing to go at the time prescribed to his appointed place of duty (070704); the punishment consisted of extra duty and restriction for 7 days, (suspended), (Summarized).

3.  He received 14 negative counseling statements which were completed between                 13 February 2007 and 18 June 2008 for losing his ID card on more than one occasion, failing to repair on divers occasions, missing movement, failing to enroll dependents in Tricare, disobeying a lawful order from a NCO divers occasions, failing to report/failing to maintain auto insurance, and being recommended for separation under Chapter 14.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, self-authored statement, Memorandum, two pages, Defense Counsel, three character statements, DA Form 2627 (Report of Proceedings Under Article 15, UCMJ), Congressional Documents, eight pages, Letter, Chief, Case Management Division, and a DD Form 214.

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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, pattern of misconduct.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" 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 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.  The applicant’s record of service was marred by two Articles 15 and 13 negative counseling statements.

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 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, pattern of misconduct.  The regulation further stipulates that no deviation is authorized.  A Soldier assigned an SPD Code of "JKA" will be assigned an RE Code of 3.

5.  The applicant contends during his time in service he experienced severe family problems; and was told he would be given a fair chance which did not happen. However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  

6.  The applicant further contends he was unfairly discharged from the military.  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 unfairly discharged.  In fact, the applicant’s two Articles 15 and numerous negative counseling statements justify a pattern of misconduct.  The applicant’s statement alone did not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.   

7.  Also, 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.  

8.  The applicant desires to reenlist in the Army.  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. 

9.  Therefore, the reason for discharge and the characterization of service 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:  Records Review      Date:  27 September 2013    Location:  Washington, DC

Did the Applicant Testify:  No

Counsel:  None

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 Authority for Separation:		No Change
Change RE Code to:			No Change
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)		AR20130005905



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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