IN THE CASE OF:  	Mr. 

      BOARD DATE:  	9 September 2013

      CASE NUMBER:  	AR20130007747
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review hearing his testimony 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 from general, under honorable conditions to honorable and a change to the narrative reason for separation to include the reentry eligibility (RE) code.

2.  The applicant, through counsel, provides the following issues for the Board's consideration:

Issue 1.  He was unlawfully discharged because appropriate procedures were not adhered to by his chain of command and the discharge was inequitable. 

Issue 2.  His discharge was not proper because his chain of command informed him he had no choice regarding his discharge.  

Issue 3.  He was denied the right to consult with legal counsel.

Issue 4.  The applicant’s prior Case Report and Directive contained material misstatements of facts, which were relied upon by the Board.

Issue 5.  The applicant was exonerated of all misconduct and has the ability to continue serving his country honorably.

Issue 6.  The sole basis for his administrative discharge was due to his disgruntled ex-wife making false accusations. 

Issue 7.  The Board was presented with completely inaccurate information.

Issue 8.  The applicant desires to receive VA benefits to continue his college education.

Issue 9.  The applicant has taken steps to be a productive member of society.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		19 April 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			29 July 2009
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			A Co, 1-504th Parachute Infantry Regiment, 							Fort Brag, NC
f. Current Enlistment Date/Term:	15 August 2007, 4 years and 20 weeks
g. Current Enlistment Service:	1 year, 11months, 15 days
h. Total Service:			1 year, 11months, 15 days
i. Lost time:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	11B1P, Infantryman
m. GT Score:				126
n. Education:				College Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		No
u. Prior Board Review:			Yes/12 September 2012/Records Review/Denied

SUMMARY OF SERVICE:		

The applicant's record shows he enlisted in the Regular Army on 15 August 2007, for a period of 4 years and 20 weeks.  He was 25 years old at the time of entry and a college graduate.  He was trained in and awarded military occupational specialty (MOS) 11B1P, Infantryman.  His record does not contain any evidence of acts of valor or meritorious achievements.  
He was serving at Fort Bragg, NC, when his discharge was initiated and he achieved the rank of SPC/E-4.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 29 June 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct-commission of a serious offense for assaulting his wife on two separate occasions (090123, 090309).

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 30 June 2009, the applicant was given the opportunity to consult with legal counsel, was advised of the impact of the discharge action, and indicated he intended to submit a statement on his behalf.  However, in a memorandum dated 8 July 2009, the paralegal NCO indicated the applicant was afforded seven days to submit matters on his behalf and he failed to submit any matters within the prescribed time or requested a delay to submit matters.  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 9 July 2009, 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 29 July 2009, 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 documented evidence of unauthorized absences, time lost or any actions under the Uniform Code of Military Justice (UCMJ).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record of evidence contains two statements from the applicant’s spouse, dated          23 January 2009 and 9 March 2009, detailing the assaults on the respective dates.

2.  Two Memoranda for Record, Family Advocacy Review Committee (CRC) Incident Determination, dated 24 February 2009, and 21 April 2009, both unsigned, which indicated the incidents met the criteria for physical abuse.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a two DD Form 293s, Counsel’s Letter, Letter, Chief, Case Management Division, Counsel’s Addendum, six pages, Enclosure 1, Applicant’s Declaration, five pages, Enclosure 2, no document, Enclosure 3,State of North Carolina Document, Enclosure 4, Chapter 14 documents, seven pages, Enclosure 5, Memorandum for Record, Expiration of Time to Submit Matters for Chapter 14, Enclosure 6, Prior Army Discharge Review Board-Case Report and Directive AR 20120005767, three pages, Montgomery GI Bill Act of 1984, three pages, duplicate of AR 20120005767, four pages, prior DD Form 293, and a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant did not provide any 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 "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 separation to include the RE code was carefully considered.  However, after examining his military record, 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 separation to include the RE code.

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 of his service below that meriting a fully honorable discharge.  

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 requested a change to the narrative reason for separation to include the RE code.  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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for misconduct (serious offense).  The regulation further stipulates that no deviation is authorized.  

5.  Further, 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. 

6.  Issues 1 and 2 are rejected.  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 issue he was unjustly discharged or his discharge was inequitable.

7.  Further, the applicant was administratively discharged under the provisions of Chapter 14, which is an involuntary discharge.  The applicant did not request to be discharged, but was discharged because the quality of his service was not consistent with the Army's standards.
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.

8.  Issue 3 is rejected.  The evidence of record shows on 30 June 2009, the applicant was given the opportunity to consult with legal counsel, was advised of the impact of the discharge action, and indicated he intended to submit a statement on his behalf.  AR 635-200, paragraph 2-2(5) states failure to respond (including failing to submit matters) within 7 duty days constituted a waiver of his rights.

9.  Issues 4 and 7 are rejected.  The applicant bears the burden of presenting substantial and credible evidence to support these issues.  There is no evidence in the record, nor has the applicant produced any evidence to support the issues the Board relied on misstated facts and inaccurate information in rending it’s decision in the applicant’s case.

10.  Issue 5 is rejected.  The applicant submitted a document from the District Court of Cumberland County, which indicated dismissal of the charges.  It further showed after a thorough review of the discovery, evidence, and consultation with the witness (wife), the State believed prosecution was not in the best interest of justice at the time.  However, this does not mean the applicant was not guilty, just that the State chose not to prosecute him.  Of note, the back page of this court document was not included with his application. 

11.  Also, the rationale the applicant provided as the basis for what he believes was an unjust discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.

12.  Issue 6 is rejected.  The applicant provided two statements from his wife, dated               23 January 2009 and 9 March 2009, which detailed the assaults when they occurred on their respective dates.  The record of evidence shows at the time these incidents happened; the applicant was living in the same apartment with his wife, not ex wife as indicated in his counsel’s addendum.
13.  Issue 8 is rejected.  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.

14.  Issue 9 is rejected.  The applicant is to be commended for his effort.  However, this issue is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued.  

15.  Therefore, the reason for discharge, the characterization of service to include the RE code being both proper and equitable, recommend the Board deny relief. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance  Date:  9 September 2013  Location:  Washington, DC

Did the Applicant Testify:  Yes – *Counsel testified for the applicant, which did not appear.

Counsel:  Yes (redacted)

Witnesses/Observers:  NA

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

The applicant submitted no additional documents or contentions.

In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

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:		NA
Grade Restoration to:		NA
Change Authority for Separation:	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)		AR20130007747



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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