IN THE CASE OF:	 

      BOARD DATE:  	30 October 2013

      CASE NUMBER:  	AR20130006511
___________________________________________________________________________

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 to upgrade his characterization of service from general, under honorable conditions to fully honorable.

2.  The applicant states, in effect, his request is based on the following reasons:  He patriotically enlisted and wanted to make the Army a career, and reenlisted three times and has three honorable discharges.  He reenlisted in search of his 20-plus-year career.  However, his career came to a halt three months prior to May 2011; because he started having bad back problems that had started to bother him after serving five years.  He feels he was targeted because he was not “one of them” in his brigade.  All the new chain of command in the brigade and battalion saw him trying to get help for his back issues before a field rotation, and saw him as a “shammer.”  In 2007, he had issues after a deployment in Iraq and referred to marijuana as a stress and fear reliever.  The same weekend, he realized what he was doing and self referred to the Army Substance Abuse Program and four months later, he graduated a better person.  The three months before he was discharge, he was targeted because he wanted to get help for his back before his 4th deployment.  One of the new NCOs that arrived hated him and tried to find a reason to kick him out, and used the positive urinalysis from four and a half years prior to kick him out.  His separation packet was re-done three times.  First packet read to him was for homosexuality and JAG caught it and said this is wrong. Second attempt was for patterns of misconduct, but he did not have patterns of misconduct only the one positive urinalysis incident that was the basis for his separation.  Everyone, including JAG indicated it was wrong.  Two other Soldiers were chaptered out with him for patterns of misconduct for being drunk on duty three times and got the same general, under honorable conditions discharge.  However, they had no deployments and no reenlistments.  He did not have a problem getting the job he worked at for a little over a year now.  However, he gave ten years of his life fighting for our country only to have a racist person put me out with the same discharge status as the drunks who could not keep sober with no deployments or reenlistments.  He believes he deserves his status changed to honorable.
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	1 April 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	3 May 2011
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200 
			paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	1st Bn, 77th FA, Schweinfurt, Germany
	f.	Current Enlistment Date/Term:	2 June 2009, NIF
	g.	Current Enlistment Service:	1 year, 11 months, 2 days
	h.	Total Service:	8 years, 7 months, 21days 
	i.	Time Lost:	None 
	j.	Previous Discharges:	USAR (020913-021021) / NA
			ADT    (021022-030314) / UNC
			AD      (030315-030514) / HD 
			USAR (030515-030927) / NA
			OAD      (030928-041005) / HD
			USAR    (041006-090601) / NA
			OAD      (050721-090601) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	91H10, Track Vehicle Repairer
	m.	GT Score:	90
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA, Germany
	p.	Combat Service:	Afghanistan (031025-040826), Iraq (060901-
			071120), (081201-091117) 
	q.	Decorations/Awards:	ARCOM; AGCM; NDSM; ACM-CS; ICM-4CS 
			GWOTSM; ASR; OSR-4; AFRM-M Device; MUC-2
	r.	Administrative Separation Board: 	NIF
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No 

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 21 July 2005, for a period of 3 years and 15 weeks, and reenlisted on 2 June 2009 (period of enlistment NIF).  He was 21 years old at the time of entry and a high school graduate.  He served in Germany, Iraq, and Afghanistan.  He earned an ARCOM.  He completed 8 years, 7 months, and 21 days of active duty and reserve service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant’s signature.  

2.  The DD Form 214 indicates that on 3 May 2011, the applicant was discharged under the provisions of Chapter 14-12c, AR 635-200, for misconduct (serious offense), with a characterization of service of general, under honorable conditions.  The DD Form 214 also shows a Separation Program Designator (SPD) code of JKQ and a reentry (RE) code of 3.  

3.  The applicant’s available record does not show any recorded actions under the UCMJ, unauthorized absences or time lost.  However, he was separated as a PV1/E-1 and the action that caused his reduction is not contained in the service record.

4.  The record does not contain the discharge orders.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There is no counseling statement or UCMJ action in the record.  
EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided no further evidence.

POST-SERVICE ACTIVITY: 

The applicant provided none. 

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

2.  The applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process.  

3.  The DD Form 214 also indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c by reason of misconduct (serious offense), with a characterization of service of general, under honorable conditions.  Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant's contentions about errors within the process and basis of his discharge proceedings, being discriminated by members of his chain of command, and having medical issues were carefully considered.  However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service.  Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted.  The applicant’s statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge.  

5.  If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record.

6.  In addition, the applicant contends medical issues may have contributed to his discharge from the Army.  However, the service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge may have been the result of any medical condition.  Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication.   

7.  The applicant contends that he had good service which included having reenlisted three times and three deployments.  The applicant’s service accomplishments and the quality of his service prior to any incidents that may have caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge without further evidence in support of this request for an upgrade of the discharge.

8.  The applicant contends that since leaving the Army he has been employed continuously since.  The applicant’s post-service accomplishments have been noted as outlined on the application.  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.  Additionally, the Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings.  The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

9.  Therefore, based on the available evidence and the government presumption of regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus 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:  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 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)		AR20130006511

Page 2 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1