IN THE CASE OF:  	

      BOARD DATE:  	6 November 2013

      CASE NUMBER:  	AR20130007941
___________________________________________________________________________

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 from general, under honorable conditions to honorable and a change to the narrative reason for the discharge.

2.  The applicant states, in effect, that his discharge was based on two incidents that happen over a five year period of time with no other issues of misconduct.  He contends he served in the military for almost five years, completed two tours of duty in Afghanistan, received many awards to include the PH, two ARCOM's, the ASR, and CAB.  He also contends that at the time of discharge PTSD was involved in his actions.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		22 April 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			27 April 2011
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			F Co, 2nd Bn, 508th PIR, Fort Bragg, NC
f. Current Enlistment Date/Term:	20 March 2009, 6 years
g. Current Enlistment Service:	2 years, 1 month, 8 days
h. Total Service:			4 years, 10 months, 22 days
i. Time Lost:				None
j. Previous Discharges:		USAR-060606-060620/NA										RA-060621-080220/HD										RA-080221-090319/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	88M10, Motor Transport Operator
m. GT Score:				90
n. Education:				GED
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan (070209-080419 and 090815-091224)
q. Decorations/Awards:		PH, ARCOM, AGCM, ACM-w/2CS-2, NDSM, 							GWOTSM, ASR, OSR, NATOMDL, CAB
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 United States Army Reserve on 6 June 2006 and was discharged on 20 June 2006 for enlistment in the Regular Army.  He enlisted in the Regular Army on       21 June 2006, for a period of 3 years.  He was 19 years old at the time and had a high school equivalency (GED).  On 20 March 2009, he reenlisted for a period of 6 years.  His record indicates he served two tours of combat in Afghanistan.  He achieved the rank of E-4/SPC and earned several awards to include a PH, ARCOM, AGCM, and a CAB.  He was serving at Fort Bragg, NC when his discharge was initiated.  He completed 4 years, 10 months, and 22 days of total military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 22 March 2011, 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 misconduct (serious offense) for being apprehended by the Fayetteville Police for driving with a blood alcohol content of 0.11% on 3 November 2010; this was his second DUI offense.

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 22 March 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and indicated his intention to submit a statement on his own behalf.  

4.  On 31 March 2011, a memorandum for record indicates the applicant having indicated his intention to submit matters on his behalf by 22 March 2011, had failed to do so; therefore, the administrative elimination was forwarded to the intermediate commander and separation authority for action.  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.

5.  On 4 April 2011, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

6.  The applicant was discharged from the Army on 27 April 2011, 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), with a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

7.  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 Phoenix Police Department Report, which indicates the applicant was arrested for DUI and processed.

2.  A General Officer memorandum of reprimand, dated 14 May 2009, for being arrested for driving while impaired on 7 June 2008, with a blood alcohol content of .11%, which was over the legal limit authorized to operate a motor vehicle in the State of Arizona. 

3.  A MP report, which indicates the applicant, was the subject of investigation for impaired driving, careless and reckless by speed, speeding to elude, failure to stop at signal, and failure to maintain lane.

4.  A General Officer memorandum of reprimand, dated 10 November 2010, for driving while impaired on 3 November 2010, with a blood alcohol content of .11%, which was over the legal limit authorized to operate a motor vehicle in the state of North Carolina.

5.  Three negative counseling statements dated between 9 December 2010 and 28 January 2011, for failure of his APFT test x 2 and notification of separation as a result of a second DUI.

6.  Report of Mental Status Evaluation, dated 21 March 2011, which psychiatrically cleared the applicant for any administrative action deemed appropriate by the command.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a self-authored statement, two letters of support, a copy of his ERB, dated 3 November 2010, a copy of his certificate for award of the PH, a copy of his unofficial transcript, dated 29 March 2013, a copy of his resume and work study agreement to include time record and breakdown of employee advancement, and a copy of his DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

The applicant contends he has been enrolled in college for over a year, striving to obtain a bachelors degree in criminal justice and working at his school in the VA Department helping other veterans.

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, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's 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 record of service was marred by two General Officer memorandum's of reprimand for DUI and three negative counseling statements.

3.  The applicant requested a change in the reason for the discharge  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.  

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 he served honorable for almost five years, to include two tours of combat and receiving several awards to include the PH, two ARCOM's, the ASR, and CAB.  However, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  It appears the applicant’s generally good record of service was the basis for his receiving a GD instead of the normal UOTHC discharge.  

6.  Furthermore, the applicant’s post-service accomplishments have been noted as outlined on the application and in the documents with the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, these accomplishments did not overcome the reason for discharge and characterization of service granted.  

7.  The applicant contends PTSD was involved in his actions which resulted in his discharge.  However, the record shows that on 21 March 2011, the applicant underwent a mental status evaluation which indicates he was mentally responsible, had the mental capacity to understand and participate in the proceedings, could distinguish right from wrong, and did not exhibit symptoms of PTSD.  The service record contains no evidence of PTSD diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.

8.  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:  6 November 2013   	Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

Board Vote:
Character Change:  2	No Change:  3
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)		AR20130007941



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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