IN THE CASE OF:  	Mr. 

      BOARD DATE:  	15 November 2013

      CASE NUMBER:  	AR20130009318
___________________________________________________________________________

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

2.  The applicant states, in effect, that he was unfairly discharged.  He contends he served his country with respect, integrity and honor.  He believes he was mistreated by his chain of command due to the fact he speaks differently.  He provided a statement from another Soldier who acknowledged his mistreatment while they were serving together.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		13 May 2013
b. Discharge received:			Uncharacterized
c. Date of Discharge:			21 May 2007
d. Reason/Authority/SPD/RE:		Entry Level Performance and Conduct, Chapter 11 						AR 635-200, JGA, RE-3
e. Unit of assignment:			U Co, 262d QM Bn, 23d QM Bde, Fort Lee, VA
f. Current Enlistment Date/Term:  	31 October 2006, 3 years and 25 weeks
g. Current Enlistment Service:  	0 years, 6 months, 21 days (Includes 6 days of 							excess leave 070409-070414)
h. Total Service:			0 years, 6 months, 21 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	92F10, Petroleum Supply Specialist
m. GT Score:				91
n. Education:				14 years
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None
u. Prior Board Review:			No
SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 31 October 2006, for a period of 3 years and 25 weeks.  He was 36 years old at the time of entry with 14 years of education.  He was attending training at Fort Lee, VA when his separation was initiated.  His record documents no acts of valor or significant achievements.  He completed 6 months and 21 days of active military service.




SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 26 April 2007, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 11, paragraph 11-3a, AR 635-200, by reason of entry level performance and conduct for his lack of discipline and infractions such as willful disobedience and disrespect in language and deportment toward cadre.

2.  Based on the above misconduct, the unit commander recommended the applicant’s separation from the Army with an uncharacterized discharge and advised him of his rights.

3.  On 10 May 2007, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, and did not submit a statement on his behalf.  The unit commander subsequently recommended the applicant’s discharge and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval with an uncharacterized discharge.

4.  On 16 May 2007, the separation authority waived further rehabilitation and directed the applicant’s separation from the Army with an uncharacterized discharge.

5.  The applicant was discharged from the Army on 21 May 2007, with an uncharacterized discharge under the provisions of Chapter 11, AR 635-200, for entry level performance and conduct, with a Separation Program Designator code (SPD) of JGA 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.  Article 15, imposed on 25 April 2007, disobeying a lawful order from a noncommissioned officer (070418), being disrespectful towards a commissioned officer (070418), and being disrespectful in language and deportment towards a noncommissioned officer x 2 (070423).  The punishment consisted of reduction to the grade of E-2, forfeiture of $340.00 per month for one month, and extra duty and restriction for 14 days (CG).

2.  Incomplete Summarized Record of Proceedings under Article 15, UCMJ, document for being disrespectful in language toward a drill sergeant.  The document contains no punishment or dates.

3.  Four negative counseling statements dated between 17 April 2007 and 23 April 2007, concerning failure to obey an order or regulation, being disrespectful in language and gestures, disrespect and willful disobedience of a senior noncommissioned officer, and provoking speeches or gestures.



EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, a statement from a friend, and a copy of his DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

None were provided with the application.

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-9 contains guidance on entry level separations.  It states a separation will be described as entry-level with service uncharacterized if, at the time separation action is initiated, the Soldier has less than 180 days of continuous active duty service.

2.  Chapter 11 of Army Regulation 635-200 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry level status (ELS).  An uncharacterized service description is normally granted to Soldiers separating under this chapter. 

3.  A general discharge (GD) under honorable conditions discharge is not authorized under ELS conditions and an honorable discharge (HD) is rarely ever granted.  An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.

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 "JGA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 11, entry level performance and conduct.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JGA" 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, 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 evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the uncharacterized description of service accurately reflects the applicant’s overall record of service.  An uncharacterized discharge is neither positive nor negative and it is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  

3.  The separation authority approved the applicant's discharge as entry-level status, with the description of service as uncharacterized.  Army Regulation 635-200 provides in pertinent part, that a Soldier is in entry-level status for the first 180 days of continuous active duty.  The purpose of the entry-level status is to provide the Soldier a probationary period.  Soldiers who are found to lack the necessary motivation, adaptability, self-discipline, ability, or attitude to become productive Soldiers may be expeditiously separated while in entry-level status.  The regulation also provides, except in cases of serious misconduct, that a Soldier’s service will be uncharacterized when the separation is initiated while the Soldier is in entry level status.  

4.  A general, under honorable conditions discharge is not authorized under ELS conditions and an honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct or performance of duty.  The applicant’s service record indicates no such unusual circumstances were present and did not warrant an honorable discharge.

5.  The applicant requests a change to the reason for his discharge; however, the narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 11, paragraph 11-3a, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Entry Level Perforance and Conduct," and the separation code is "JGA."  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 was no provision for any other reason to be entered under this regulation.  

6.  The applicant contends he was unjustly discharged.  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 unjustly discharged.  In fact, the applicant’s Article 15 and numerous negative counseling statements justify a reason for discharge under the provisions of Chapter 11, paragraph 11-3a.  The applicant’s statement alone does 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.  Furthermore, the record does not contain any indication or evidence of arbitrary or capricious actions by the command.  The character of the applicant’s discharge is commensurate with his overall service record.

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?  NA 

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


ADRB Case Report and Directive (cont)		AR20130009318



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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