IN THE CASE OF:  	

      BOARD DATE:  	20 November 2013

      CASE NUMBER:  	AR20130009340
___________________________________________________________________________

Board Determination and Directed Action

1.  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 to be both proper and equitable and voted to deny relief.  

2.  However, notwithstanding the propriety of the applicant’s discharge, the Board found that the applicant’s DD Form 214, block 27 contains the erroneous reentry code of 4.    

3.  In view of the error, the Board directed an administrative correction to block 27 to read RE-3, as required by Army Regulations.  



      
      
      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 under other than honorable conditions to honorable.

2.  The applicant states, in effect, that his discharge was inequitable due to his infraction with civilian authorities.  He contends that his prior conduct in the Army and Navy were exemplary without incident and that he was discharged within 90 days of what was otherwise a productive career.  He also contends that following the events that cased his discharge he has conducted himself honorably, without incident as a civilian and role model to his children.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		13 May 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			4 May 2001
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, Chapter 14, paragraph
      14-5, JKB, RE-4
e. Unit of assignment:			HHD, 64th RSB, 3d BCT, Fort Carson, CO
f. Current Enlistment Date/Term:	29 July 1998, 3 years 
g. Current Enlistment Service:	2 years, 9 months, 2 days
h. Total Service:			14 years, 10 months, 6 days
i. Time Lost:				3 days
j. Previous Discharges:		USN-860625-910318/HD										USNR-910319-980728/NA
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	55B10, Ammunition Specialist
m. GT Score:				116
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			None
q. Decorations/Awards:		NGCM, NDSM, SWASM, MUC, ASR, KLM-SA, HSM 
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 Navy on 25 June 1986.  His record shows he was honorably discharged on 18 March 1991, and transferred to the United States Navy Reserve, where he served until 28 July 1998.  The applicant enlisted in the Regular Army on 29 July 1998, for a period of 3 years.  He was 31 years old at the time of entry and a high school graduate.  His record indicates he served in Saudi Arabia.  His record also indicates he earned the NGCM.  He completed 14 years, 10 months, and 6 days of total military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 15 March 2001, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-5, AR 635-200, by reason misconduct (civil conviction) for credit card fraud.

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  The applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board, and did not submit a statement on his behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  

4.  On 6 April 2001, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

5.  The applicant was discharged from the Army on 4 May 2001, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-5, AR 635-200, for misconduct (civil conviction), with a Separation Program Designator code (SPD) of JKB and an RE code of 4. 

6.  The applicant's record of service indicates 3 days of time lost as a result of going AWOL from 12 December 2000 until his return on 15 December 2000.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Documents pertaining to criminal misconduct to include a Boulder County Sheriff's Department Case Report dated, 19 December 2000, outlining multiple charges, a                  13 December 2000, Affidavit for Arrest Warrant, a charge description from the Boulder County, CO District Court citing violations of Colorado statutes and a plea of guilty to the unauthorized use of a financial transfer device on 17 January 2000 in the amount of $400-$15,000.

2.  Annex A; an account of events involved with AWOL incident concerning the applicant from 8 December 2000 to 20 December 2000.

3.  The applicant's record does not contain any recorded action under the UCMJ or counseling statements.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

POST-SERVICE ACTIVITY: 

None were provided by the applicant.

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 "JKB" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-5, for misconduct (civil convention).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKB" 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 general or a fully honorable discharge.  The applicant’s record of service was marred by his civil conviction for credit card fraud.

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 did not properly annotate the enclosed application requesting a possible discharge upgrade.  However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge.

5.  The applicant contends his discharge was inequitable because it was the result of his infraction with civilian authorities.  However, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. 

6.  The applicant also contends that prior to his incident of misconduct his service in the Army and Navy was exemplary.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by his civil conviction for credit card fraud.

7.  The records show the proper discharge and separation authority procedures were followed in this case.  

8.  Additionally, the service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4.  The discharge packet confirms the separation authority approved the discharge by reason of misconduct (civil conviction).  AR 635-5-1, (Separation Program Designator Codes) and Cross Reference Table shows that a Soldier processed for misconduct (civil conviction) will be assigned an SPD Code of JKB and an RE Code of 3.  

9.  In view of the foregoing and notwithstanding the propriety of the discharge, recommend the Board change block 27, reentry code to 3, as approved by the separation authority.

10.  Except for the foregoing modification to the reentry code, 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: 20 November 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:			Yes
Change Characterization to:		No Change
Change Reason to:				No Change
Change Authority for Separation:		No Change
Change RE Code to:			Change to RE Code 3
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)		AR20130009340



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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