IN THE CASE OF:	Mr. 

      BOARD DATE:	15 November 2013

      CASE NUMBER:	AR20130006666
___________________________________________________________________________

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 a change to the narrative reason for his discharge.  Additionally, although the applicant did not properly annotate the enclosed application requesting a possible discharge upgrade, the Board would consider his application for a possible upgrade as instructed in Department of Defense Instruction (DoDI) 1332.28. 

2.  The applicant states, in effect, the reason for his discharge should state, “medical.”  His current discharge prevents him from obtaining the benefits he feels he is entitled to as a veteran.  

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	5 April 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	4 June 2004
	d.	Reason/Authority/SPD/RE Code:	Misconduct, AR 635-200, Paragraph 14-12b, JKA, 
			RE-3
	e.	Unit of assignment:	Rear Detachment, 1st Sqdn, 4th Cav, 280th BSB, 
			98th Area Support Group, Schweinfurt, GE
	f.	Current Enlistment Date/Term:	23 May 2002, 3 years 
	g.	Current Enlistment Service:	2 years, 0 months, 12 days
	h.	Total Service:	2 years, 0 months, 12 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	63M10, Bradley Fighting Vehicle System Mechanic
	m.	GT Score:	104
	n.	Education:	GED
	o.	Overseas Service:	Germany 
	p.	Combat Service:	None
	q.	Decorations/Awards:	NDSM; GWOTSM; ASR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No 

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 23 May 2002, for a period of 3 years.  He was 19 years old at the time of entry and had a high school equivalency (GED).  He was trained in and awarded military occupational specialty (MOS) 63M10, Bradley Fighting Vehicle System Mechanic.  His record documents no acts of valor or significant achievement.  He completed 2 years and 12 days of active duty service.


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 11 May 2004, 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 pattern of misconduct.  Specifically for the following offenses:  

a. wrongfully using tetrahydrocannanibol (031226-040126) 
b. fail to obey an NCO (040319)
c. failing to obey a lawful general order (040319)
d. failed to obey an order from his commander (040319)
e. wrongfully breaking restriction (040412)

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 11 May 2004, the applicant waived consulting with legal counsel, indicated he understood the impact of the discharge action, and did not submit a statement on his own 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 27 May 2004, 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 4 June 2004, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for misconduct, a Separation Program Designator code (SPD) of JKA and an RE code of 3. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There is a positive urinalysis report contained in the record:  IR, Random Inspection, 26 January 2004, marijuana.

2.  Article 15, dated 6 May 2004, for disobeying an NCO (040319), disobeying a lawful general order (040319), disobeying a commissioned officer (040319), and breaking restriction (040412).  The punishment consisted of forfeiture of $596 per month for two months, 45 days of extra duty and restriction, (FG). 

3.  Article 15, dated 6 March 2004, for wrongfully using tetrahydrocannanibol (marijuana) (031226-040126), failing to go to his appointed place of duty (040119), and being drunk on duty (040303).  The punishment consisted of reduction to the grade of E-1, forfeiture of $597 per month for two months, 45 days of extra duty and restriction, (FG).

4.  Seventeen negative counseling statements, dated between 28 January 2004 and 28 April 2004, for wrongfully using controlled substance; being processed for separation; failing to obey order; being insubordinate; damaging military property; communicating a threat; provoking speeches or gestures; failing to comply with barracks policy; breeching physical security; revocation of civilian attire and privileges; securing of his ID card; relocating him to another building; not being at appointed place of duty; breaking restriction; limitations and restrictions of Article 15 punishment; disobeying the CG and Commander’s policy; dereliction of duty; and missing formations.

5.  A Military Star notice to the commander regarding applicant’s account being past due, dated 29 December 2003.

6.  Mental Status Evaluation, dated 28 April 2004, in pertinent part, indicates applicant being diagnosed with adjustment disorder with mixed disturbance of conduct and emotions; alcohol abuse; personality disorder NOS; and a rule-out of seizure disorder.  The evaluation further found the applicant met the retention standards of Chapter 3, AR 40-501; no psychiatric disease or defect that warrants disposition through medical channels, i.e., the Soldier was not appropriate for a medical board; and was cleared for any administrative action deemed appropriate by his command.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a memorandum, dated 28 April 2004, rendered by his unit commander requesting for psychological evaluation due to an administrative separation proceedings having been initiated.

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 "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 did not properly annotate the enclosed application requesting a possible discharge upgrade.  However, the Army Discharge Review Board would consider the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28, which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge.

2.  Accordingly, the applicant’s request for a change to the reason for his discharge and an upgrade of his discharge was carefully considered.  However, after examining the applicant’s service record, and the document and the issues submitted with the application, there are insufficient mitigating factors to merit a change to the narrative reason for the discharge or an upgrade of the applicant's discharge.

3.  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 pattern of 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 15 actions for multiple violations of the Uniform Code of Military Justice and numerous negative counseling statements.

4.  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.  

5.  The applicant contends the reason for his discharge should reflect medical.  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, for pattern of misconduct.  The regulation further stipulates that no deviation is authorized.  

6.  Moreover, his contention that he should have been medically discharged, 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.  These acts of misconduct are documented by Article 15 actions and negative counseling statements.  In addition, the available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels.  

7.  The applicant has expressed his desire for VA benefits.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

8.  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.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

9.  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:  15 November 2013     Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  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 Authority for Separation:	NA
Change RE Code to:		NA
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)		AR20130006666

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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