IN THE CASE OF:  	

      BOARD DATE:  	15 November 2013

      CASE NUMBER:  	AR20130008072
___________________________________________________________________________

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 separation.

2.  The applicant states, in effect, his discharge should be changed because the basis of discharge; he was discharged because of an incident that occurred when he went to jail and was ultimately acquitted; he never wanted to get out of the Army and he deserved a fair chance.  His unit did not give him a chance for a rehabilitation transfer he requested.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 		25 April 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			22 April 2013
d. Reason/Authority/SPD/RE Code:	Pattern of Misconduct , AR 635-200, Chapter 14 						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			3-501st Aviation Regiment (Rear) (Provisional), Fort 						Bliss, TX
f. Current Enlistment Date/Term:	23 September 2008, 5 years and 33 weeks
g. Current Enlistment Service:	4 years, 7 months
h. Total Service:			4 years, 7 months
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	25B10, Information Technology Specialist
m. GT Score:				98
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan (100622-110515)
q. Decorations/Awards:		ARCOM-2, AGCM, NDSM, ACM-W/CS, GWOTSM 						ASR, OSR, NATO MDL, VUA
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 23 September 2008, for a period of 5 years and 33 weeks.  He was 18 years old at the time of entry and a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 25B10, Information Technology Specialist.  His record also shows that he served a combat tour, earned several awards including the ARCOM, AGCM, and he achieved the rank of SPC/E-4.  He was serving at Fort Bliss, TX when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 18 March 2013, 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 of pattern of misconduct.  Specifically for the following offense:

     a.  receiving an Article 15 for lying to his chain of command and making a false statement (120329)

     b.  engaging in disorderly conduct at a night club in El Paso, TX (120115)

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 27 March 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and his defense counsel submitted a statement via e-mail 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 9 April 2013, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The unit commander’s recommendation memorandum indicated the applicant was confined by civil authorities for 321 days; however, this period of confinement is not annotated on the DD Form 214 block 29 date of time lost during this period.

6  The applicant was discharged from the Army on 22 April 2013, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, a Separation Program Designator code (SPD) of JKA and an RE code of 3.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 1 April 2012 for with intent to deceive by making a false official statement to CPT M and First Sergeant K (120307); the punishment consisted of reduction to E-3 (suspended), forfeiture of $462 pay (suspended), extra duty for 14 days, and restriction for 14 days, (CG).

2.  He received three negative counseling statements which were completed on 15 February 2012, and 15 March 2013, for making false official statements, violating policy letter # 21, traveling more than 150 miles without a mileage pass, being denied leave due to civil and military authorities’ investigations, and disorderly conduct. 

3.  The record contains a CID Report of Investigation, dated 17 January 2012 which indicated the applicant was under investigation for discharging a firearm and aggravated assault.

4.  The record contains a Commander’s Inquiry, dated 9 March 2012 which indicated the applicant was at a club where another Soldier was killed.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application.

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

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 an Article 15, three negative counseling statements, CID Report, and a Commander’s Inquiry.

3.  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.

4.  The applicant requested a change to the narrative reason for separation.  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, pattern of misconduct.  The regulation further stipulates that no deviation is authorized.  A Soldier assigned an SPD Code of "JKA" will be assigned an RE Code of 3.

5.  The applicant contends his discharge should be changed because of the basis of discharge; he went to jail and was ultimately acquitted.  He never wanted to get out of the Army and he deserved a fair chance.  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 contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was acquitted.

6.  Further, 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.
7.  The applicant also contends his unit did not give him a chance for the rehabilitation transfer he requested.  AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  After reviewing the applicant’s discharge packet, the separation authority indicated that the rehabilitative requirements did not apply to this action.  Moreover, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

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:  15 November 2013      Location:  Washington, DC

Did the Applicant Testify:  No

Counsel:  None

Board Vote:
Character Change:  1	No Change:  4
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)		AR20130008072



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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