IN THE CASE OF:  	Mr. 

      BOARD DATE:  	23 October 2013

      CASE NUMBER:  	AR20130007028
___________________________________________________________________________

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 honorable and a change to the narrative reason for the discharge.

2.  He states, in effect, that his discharge should be changed because he wants to continue serving his country.  He had served 7 years in the Marine Corps Reserve and 5 years in the Regular Army.  His Marine Corps time and his first Army enlistment were honorable.  He believes his commander at the time was unfair in his judgment of his case.  Now he is trying to go into the Navy Reserve as enlisted or as an officer.  This was the first time he was ever in trouble in the military and it will never happen again.  He should have fought the case with his lawyer but he just let it go because he wanted out of the Army.  Now that he has been out, he just wants to go back into the military and serve his country with all of his heart.  He earned a lot of awards and coins.  His commander should have looked into his records a bit more before he made his recommendation.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		8 April 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			9 November 2012
d. Reason/Authority/SPD/RE:		Misconduct, (Serious Offense), AR 635-200, Chapter 						14-12c, JKQ, RE-3
e. Unit of assignment:			4-58th Airfield Operations Battalion, United States 						Army Garrison Humphreys, APO AP 
f. Current Enlistment Date/Term:	12 October 2010, NIF
g. Current Enlistment Service:	2 years, 00 months, 28 days 
h. Total Service:			5 years, 5 months, 25 days USMCR period of service 						is NIF)
i. Lost time:				None	
j. Previous Discharges:		RA (070515-101011), HD										USMC (NIF)
k. Highest Grade Achieved:		E-5	
l. Military Occupational Specialty:	74D10, Chemical, Biological, Radiological, and 						Nuclear (CBRN) Specialist
m. GT Score:				109
n. Education:				16 years
o. Overseas Service:			Korea
p. Combat Service:			None 
q. Decorations/Awards:		ARCOM, AAM-4, AGCM, NDSM, GWOTSM, KDSM, 						USMCRM, AFRM, NPDR, ASR, OSR-3, USMCOSR, 						MUC 
r.  Administrative Separation Board: No (conditionally waived)
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes	
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant's record shows he enlisted in the Regular Army 15 May 2007 as a high school graduate.  On 12 October 2010, he reenlisted for an unknown period; he was 30 years old at the time.  His record shows he was promoted to sergeant on 1 February 2012 and this is the highest rank he attained while on active duty.  His record shows he was awarded an ARCOM,
4 AAMs, an AGCM, and a NPDR.

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 21 September 2012, 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 misconduct, for the commission of serious offenses; specifically for:

	a.  receiving a FG Article 15 on 23 July 2012, for wrongfully entering into a marriage 	   	     with a non-US citizen without properly notifying his chain of command.
	b.  assaulting his wife on two separate occasions.
	c.  stealing about $4,651.24 the property of the United States Army.
	d.  committing adultery.

2.  Based on the above misconduct, the unit commander recommended an under other than honorable condition discharge and informed the applicant of his rights.

3.  On 24 September 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions 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 the separation with a general, under honorable conditions discharge.  

4.  On 23 October 2012, the separation authority approved the conditional waiver request, 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 9 November 2012, 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 evidence of unauthorized absences or time lost.  



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A Military Police Report dated 26 June 2012, for assaulting his wife on two separate occasions and stealing about $4,651.24 the property of the United States Army.

2.  A FG Article 15 issued on 23 July 2012, for wrongfully entering into a marriage with a non-U.S. citizen without properly notifying his chain of command (120511), assaulting his wife on two separate occasions (120428 and 120604), stealing about $4,651.24 the property of the United States Army (between 120309 and 120511), and committing adultery (between 
120216 and 120309).  The punishment consisted of reduction to the grade of E-4, forfeiture of pay in the amount of $590.00 for two months, 14 days of extra duty and an oral reprimand.

3.  One counseling statement, dated 19 August 2012, for notification of possible separation.  

4.  An NCOER covering the period 1 February 2012 through 23 July 2012.  The applicant was rated as “Marginal.”

EVIDENCE SUBMITTED BY THE APPLICANT: 

An online DD Form 293, an honorable discharge certificate, dated 12 October 2010, and a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant states he has a decent job and has not been in any trouble with the law.

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 14-12c, for 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 and the reason for his discharge were carefully considered.  However, after examining his military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or change the reason for his 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 misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s service was marred by an Article 15 for multiple violations of the Uniform Code of Military Justice.
 
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 the event that caused his discharge from the Army was the only time he has been in trouble.  Although this was his first incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  

5.  The applicant contends that he had good service which included 7 years in the Marine Corps Reserve and 5 years in the Regular Army.  His Marine Corps time and his first Army enlistment were honorable.  He earned a lot of awards and coins.  The applicant’s service accomplishments and the quality of his service prior to the incidents that 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 as shown by the repeated incidents of misconduct or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.

6.  The applicant contends he believes his commander at the time was unfair in his judgment of his case.  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 issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unfair in his judgment.  In fact, the applicant’s Articles 15 and other incidents noted in the unit commander’s notification letter justify his discharge from the Army.  The applicant’s statements alone do 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.  The applicant also requested a change to the reason for his discharge.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct, Serious Offense ,” and the separation code is "JKQ."  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.  

8.  The applicant desires to rejoin the Military Service (Navy Reserve).  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.  There are no basis upon which to grant a change to the reason or to the RE code.  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 being both proper and equitable, recommend the Board deny relief.  



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Record Review     Date:  23 October 2013	  Location: Washington, DC

Did the Applicant Testify?  Yes

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)		AR20130007028

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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