IN THE CASE OF:  	Mr. 

      BOARD DATE:  	15 January 2014

      CASE NUMBER:  	AR20130009912
___________________________________________________________________________

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 under other than honorable conditions to honorable and a change to the narrative reason for separation to include the reentry eligibility (RE) code.

2.  He states through counsel, in effect, his misconduct was a single incident.  He was treated unfairly and unjustly; he was not able to rehabilitate or was given a second chance like other Soldiers; his unit did not care about him, who had served more than four years.  His performance/professional counseling statements were above or set the standard; he was a good Soldier that made a bad decision.  His unit did not advise him of his rights.  He desires to reenter the military.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		20 May 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			13 March 2013
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			Forward Support Company, 11th Engineer Battalion 						Fort Benning, GA
f. Current Enlistment Date/Term:	15 March 2011, 4 years
g. Current Enlistment Service:	1 years, 11 months, 29 days
h. Total Service:			4 years, 5 months, 3 days
i. Lost time:				None
j. Previous Discharges:		RA (081010-110314)/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	88M1P, Motor Transport Operator
m. GT Score:				97
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan x 2 (100321-100728), (110128-110428)
q. Decorations/Awards:		ARCOM-2, AGCM, NDSM, ACM-W/CS, GWOTSM,						ASR, CAB
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No







SUMMARY OF SERVICE:

The applicant's record shows he enlisted in the Regular Army on 10 October 2008, for a period of 3 years 22 weeks.  He was 19 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 88M1P, Motor Transport Operator.  He reenlisted on 15 March 2011, for a period of 4 years and was 21 years old at the time.  His record also shows that he served two combat tours, earned several awards which included an ARCOM-2, AGCM and a CAB; he achieved the rank of SPC/E-4.  He was serving at Fort Benning, GA when his discharge was initiated.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence contained in the applicant’s service record indicates that on 25 January 2013, 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 being arrested for driving under the influence of alcohol (121203).

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 5 February 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and indicated he intended to submit a statement on his behalf; however, it was not in the file.  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 a general, under honorable conditions discharge.

4.  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’s record does not document any record of unauthorized absences, lost time or actions under the Uniform Code of Military Justice (UCMJ).

6.  The applicant was discharged from the Army on 13 March 2013, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct, a Separation Program Designator (SPD) code of JKQ and an RE code of 3. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record of evidence contains a DA Form 1059 (Service School Academic Evaluation Report), dated 3 December 2012, which he was rated as “failed to achieve course standards” in the Warrior Leader Course (WLC 003-13), as a result of being apprehended for a DUI charge.

2.  DA Form 3822-R (Report of Mental Status Evaluation), dated 27 December 2012, which indicated his thinking process was clear and he was psychiatrically cleared for any administrative action deemed appropriate by his command.

3.  Three counseling statements from the period 06 August 2012 through 11 December 2012 for missing formation, being arrested for DUI and directing a pre-separation behavioral health examination.

4.  An arrest report dated 01 December 2012 from the Muscogee County Sheriff's Office (Case 1236-12) documenting the applicant's arrest for DUI with report detailing his BAC level of .162.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided two DD Forms 293, attorney’s letter (two pages), letter, Chief Congressional and Special Actions/with related Congressional Documents (eight pages), two Enlisted Record Briefs (ERB), Certificate of completion, Georgia, Department of Driver Services, twenty-two certificates of training, record firing scorecard, six certificates of completion, Certificate of graduation, Ranger Indoctrination Program, CAB Orders 188-17, ARCOM citation, AGCM Orders 293-15, Oath of Reenlistment, Certificate of Achievement, Certificate of Appreciation, twelve DA Forms 4856 (Developmental Counseling Form), and a DD Form 214.

POST-SERVICE ACTIVITY:

The applicant did not provide any with his 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.

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 records, 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 incident of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by twelve negative counseling statements.

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.  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.  A Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3.

5.  The applicant contends his misconduct was a single incident.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization of service.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  

6.  The applicant further contends he was treated unfairly and unjustly; he was not able to rehabilitate or was given a second chance like other Soldiers; his unit did not care about him, who had served more than four years.  The applicant bears the burden of presenting 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 treated unfairly or unjustly.

7.  Further, 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.  Further, AR 600-85, paragraph 3-8 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance.

8.  Also, 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.

9.  The applicant additionally contends his performance/professional counseling statements were above or set the standard; he was a good Soldier that made a bad decision.  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 overcome the reason for discharge and the characterization of discharge under review.

10.  Furthermore, the applicant contends his unit did not advise him of his rights.  On 25 January 2013, the applicant acknowledged receipt of the notice from his commander informing him of the basis for the contemplated action to separate him under AR 635-200, Chapter 14-12c, and of the rights available to him.  He was advised of his right to consult with counsel prior to submitting his election of rights.

11.  The applicant desires to reenter the military.  However, 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 is 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. 
12.  The records show the proper discharge and separation authority procedures were followed in this case.  

13.  Therefore, the reason for discharge and 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:  Records Review    Date:  15 January 2014       Location:  Washington, DC

Did the Applicant Testify:  NA

Counsel:  Yes [redacted]

Witnesses/Observers:  NA

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 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)		AR20130009912



Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1