IN THE CASE OF:  	

      BOARD DATE:  	30 October 2013

      CASE NUMBER:  	AR20130006276
___________________________________________________________________________

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 characterization from general, under honorable conditions to fully honorable and a change to the narrative reason.

2.  He states, in effect, that his rank at the time of his discharge was E-1 and his reason for separation is a pattern of misconduct.  He is requesting a review of the evidence he provided to prove otherwise and a correction to both his rank and reason for separation.  He has provided information to prove that he was getting paid as an E-3 but his rank still showed as E-2.  He has also provided the board with his doctor’s medical recommendations for MEB.  At the day of his discharge from the Army at Ft. Eustis VA, he was confronted by his senior drill sergeant and was told that he was no longer getting a medical discharge.  It had been changed to a pattern of misconduct with no explanation.  It was made very clear to him that if he did not sign off on his new discharge that he would be charged with UCMJ for failing to follow a direct order.  While in AIT, he witnessed on three separate occasions, two of his drill sergeants intoxicated.  He felt responsible to call the MPs because there were weapons and live ammunition available.  Nothing was done the first two times, but on the third call to the MPs, CID got involved and found his commanding officer guilty of covering up.  The commanding officer was reassigned.  He has no proof; however, but he feels though this was the only reason why his discharge was changed on the day of his separation.  He has been unable to continue working as a tractor trailer driver due to his service connected injuries.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		22 April 2013
b. Discharge Received:		General, under honorable conditions 
c. Date of Discharge:			17 March 2006
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, Chapter 14-12b, JKA, RE-3
e. Unit of assignment:			D Company, 1/222d Aviation Regiment, 8th 							Transportation Brigade, Fort Eustis, VA
f. Current Enlistment Date/Term:	IADT 26 January 2005, 7 years, 45 weeks
g. Current Enlistment Service:	1 year, 1 month, 22 days 
h. Total Service:			1 year, 6 months, 1 day
i. Time Lost:				22 days 
j. Previous Discharges:		ARNG (971113-980201), NA									USMC (980202-980227), NA									Break in Service											ARNG (041230-050125), NA				 
k. Highest Grade Achieved:		E-3	
l. Military Occupational Specialty:	None
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None 
q. Decorations/Awards:		None 
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes	
u. Prior Board Review:			None

SUMMARY OF SERVICE:		
	
The applicant's record shows he served in the ARNG and USMC for a little over 3 months before having almost a 7 year break in service.  He rejoined the ARNG on 30 December 2004 and went to IADT on 26 January 2005.  The applicant enlisted for a period of 7 years and 45 weeks.  The applicant was 26 years old at the time and was a high school graduate.  His record does not contain any meritorious achievements or acts of valor.  At the time his discharge proceeding were initiated he was serving at Fort Eustis, VA.  He served for 
1 year, 1 month, and 26 days which included 22 days of AWOL time (050509-050530).  

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 26 January 2006, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of pattern of misconduct; specifically for:

	a.  being AWOL (050509-050530).  
	b.  was derelict in the performance of his duties three times (050619, 050702, and 	       	     051102).
	c.  disobeying a lawful order (050619).
	d.  being disrespectful in language (050919).
	e.  failing to report to his appointed place of duty (051022).  

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and informed the applicant of his rights.

3.  On 2 February 2006, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived consideration of an administrative separation board even though he was not entitled to such a board, and did not submit 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 a general, under honorable conditions discharge.  

4.  On 9 March 2007, the separation authority, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions under the provisions of AR 635-200, paragraph 14-12b, for a pattern of misconduct.  

5.  The applicant was separated on 17 March 2006, under Army Regulation 635-200, Chapter 14-12b (Pattern of Misconduct), with a general, under honorable conditions discharge, an SPD code of JKA and an RE code of 3.

6.  The applicant’s record shows 22 days of lost time (050509-050530), as a result of going AWOL.  He was retained under Title 10, USC 972.   

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  Field Grade Article 15 imposed on 16 June 2005, for going AWOL (050509-050530).  
His punishment consisted of forfeiture of $617.00 pay per month for 2 months, 45 days restriction, and 45 days extra duty.

2.  Company Grade Article 15 imposed on 19 July 2005, for disobeying a lawful order from a NCO (050619), and was derelict in the performance of his duties two times (050630 and 050702).  His punishment consisted of forfeiture of $288.00 pay per month for 1 month, 
14 days restriction, and 14 days extra duty, all of which was suspended.

3.  Numerous counseling statements covering the period 21 June 2005 through 2 November 2005, for failing to following instructions, dereliction of duty, failure to return to his appointed place of duty, disrespect to a NCO, AWOL, failure to follow orders, and  bunk not made.

EVIDENCE SUBMITTED BY THE APPLICANT 

DD Form 149, a self-authored statement, medical documents (14 pages), basic pay and allowances/leave and earning statements (20 pages), and DD Form 214.

POST-SERVICE ACTIVITY: 

None provided 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 14-12b, for pattern of conduct.

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 and the reason for his discharge were carefully considered.  However, after examining his military records and the issues submitted with the application, there are insufficient 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 repeated incidents of serious misconduct, the applicant diminished the quality of his service below that meriting an honorable discharge.  The applicant’s service was marred by two Articles 15 and going AWOL.  

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 contends he should have been medically discharged; however, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  

5.  The applicant contends the discharge was unjust because the type of discharge was changed due to retaliation.  However, the applicant did not provide any proof to support his contention.  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 due to retaliation.  In fact, the applicant’s two Articles 15 and numerous negative counseling statements justify a pattern of misconduct.  The applicant’s statements alone does 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.   

6.  The applicant contends he was getting paid as an E-3 but his rank still showed E-2.  
He would like for this to be corrected.  However, the applicant’s requested change to the DD Form 214 and to his record does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization. 

7.  The applicant contends the type of discharge he received is hindering his job opportunities.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge.  Moreover, the Board does not grant relief for the purpose of gaining or enhancing employment opportunities.

8.  The applicant also requested a change to the reason for his discharge.  However, the applicant’s discharge was directed under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct,” and the separation code is "JKA."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.  

9.  However, 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.  

10.  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: 30 October 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 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)		AR20130006276



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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