IN THE CASE OF:	 

      BOARD DATE:  	30 October 2013

      CASE NUMBER:  	AR20130007609
___________________________________________________________________________

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, and to change the narrative reason for his discharge.

2.  The applicant states, in effect, he filed a complaint with IG for hazing and was reassigned from the unit he filed a compliant on and became a unit armorer.  His lieutenant and company commander from the previous unit, both of whom he submitted a complaint on then became his executive officer and first line supervisor, and company commander, respectively.  He was unable to move again and when they offered me out of the Army or continue his day-on and day-off CQ/ staff duty life.  He accepted the discharge, although JAG said it held no grounds and that he should accept it if he wants to be away from the problems as it seemed no one else was able to assist him immediately.  He was also informed his discharge can be upgraded after six months.  He never once in six years received a negative counseling statement or any negative action against him.  He feels this action has held him back from seeking employment.  He has also realized he made a decision to accept his discharge during the period he felt he had no other option and no one was willing to help him in pursuing to change units and keep him out of harm’s way.  He was beaten and forced to low crawl through the urine pits, which was reported to the investigating officer who informed him that they can only make suggestions and not fix the actual problems. 

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	19 April 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	10 August 2012
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200 
			Paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	HHT, 1st Sqdn, 32nd Cavalry, Fort Campbell, KY
	f.	Current Enlistment Date/Term:	7 August 2009, 4 years
	g.	Current Enlistment Service:	3 years, 0 months, 4 days
	h.	Total Service:	5 years, 5 months, 20 days
	i.	Time Lost:	None
	j.	Previous Discharges:	ARNG (070221-080406) / NA
			ADT    (080407-080612) / HD
			ARNG (080613-090706) / HD
	k.	Highest Grade Achieved:	E-4  
	l.	Military Occupational Specialty:	19D10, Cavalry Scout
	m.	GT Score:	115
	n.	Education:	GED
	o.	Overseas Service:	NIF
	p.	Combat Service:	NIF
	q.	Decorations/Awards:	NDSM; GWOTSM; NPDR; ASR; OSR
	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 7 April 2008, for a period of 4 years after serving in the Army National Guard for a period of 2 years, 5 months and 16 days.  He was 19 years old at the time of enlistment in the Regular Army and had a high school equivalency (GED).  He was trained in and awarded military occupational specialty (MOS) 19D10, Cavalry Scout.  His record documents no acts of valor or significant achievement.  He completed 5 years, 5 months, and 20 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 authenticated by the applicant’s signature.  

2.  The DD Form 214 indicates that on 10 August 2012, the applicant was discharged under the provisions of Chapter 14, 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.  

4.  On 31 July 2012, HQDA, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, KY, Orders Number 213-0624, discharged the applicant from the Army effective 10 August 2012.

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 a letter, dated 19 June 2013, rendered by the IG of Fort Campbell.

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 and a change to the narrative reason for his discharge was carefully considered.  However, after examining the applicant’s record of service, 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 a change to the narrative reason for his discharge.  

2.  The applicant’s record is void of the specific facts and circumstances concerning the events which 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 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 being harassed and hazed, including maltreatment as evident by the AR 15-6 investigation results by the inspector general 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 sufficient 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.  The applicant’s issue about an upgrade based on the time that has elapsed since the discharge was carefully considered.  However, the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge.  Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both, were improper or inequitable.  

7.  The applicant contends he never received a negative counseling or any negative action against him in his six year Army career.  Although the incident(s) or information that led to his discharge under current review is/are not available, a single incident as a discrediting entry constitutes a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The applicant's incident of misconduct, the basis for his discharge, adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  

8.  The applicant contends that an upgrade of his discharge will allow him to obtain employment.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

9.  The applicant contends the narrative reason for the discharge should be changed because the IG has provided a letter indicating several of the allegations investigated were substantiated.  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 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.

10.  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:  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)		AR20130007609

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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