IN THE CASE OF:  	Mr.

      BOARD DATE:  	12 February 2014

      CASE NUMBER:  	AR20130010505
___________________________________________________________________________

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 discharge.  

2.  The applicant states, in effect, that his discharge was inequitable because it was based on him being late four times over four years of service.  He did not commit any serious misconduct while on active duty.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 June 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			19 June 2012
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 14-12c, 						JKQ, RE-3        
e. Unit of assignment:			Bravo Company, 563D Aviation Support Battalion, 						Fort Campbell, KY
f. Enlistment Date/Term:		3 June 2008, 6 years 
g. Current Enlistment Service:	4 years, 17 days
h. Total Service:			4 years, 17 days
i. Time Lost:				None
j. Previous Discharges:		None 
k. Highest Grade Achieved:		E-2	
l. Military Occupational Specialty:	94E10, Radio & COMSEC Repairer
m. GT Score:				104
n. Education:				Job Corps Certificate
o. Overseas Service:			SWA x 2
p. Combat Service:			Afghanistan (081205-091117 and 110211-110410)
q. Decorations/Awards:		NDSM, AGCM, ACM-w/CS-3, GWOTSM, ASR, OSR, 						NATO MDL
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 Regular Army on 3 June 2008 for six years.  He was 17 years old at the time and had a Job Corps Certificate.  When his discharge proceedings were initiated he was serving at Fort Campbell, KY.  He did not have any significant achievements or meritorious awards; however, he served in Afghanistan in 2009 and 2011.  




SEPARATION FACTS AND CIRCUMSTANCES

1.  The record shows that on 23 May 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), specifically for:

	a.   Being disrespectful in deportment toward a NCO by smiling, rolling his head from side to side, and not making eye contact (unknown date).

	b.  Dereliction in the performance of his duties by willfully failing to replace his unserviceable physical training shoes (unknown date).

	c.  Being disrespectful in deportment toward a NCO by raising his voice and saying to her “go ahead and chapter him.  He is done with this.  He is done with this unit, or words to that effect (unknown date).  

	d.  Characterization only:  Failing to report to his appointed place of duty at the appointed time on 13 occasions (120131, 120130 x 2, 120129, 111213, 111205, 111122, 111105, 110402, 110329, 110328, 110325, and 110322).

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 30 May 2012, the applicant waived consulting with legal counsel, was advised of the impact of the discharge action and indicated he would not submit a statement on his behalf (NIF).  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.  

4.  On 8 June 2012, 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 was discharged on 19 June 2012, for misconduct (serious offense), under the provisions of Chapter 14-12c, with an SPD code of JKQ and a RE code of 3.

6.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  A Field Grade Article 15, dated 6 December 2010, for dereliction in the performance of his duties by willfully failing to replace his unserviceable physical training shoes (101019), being disrespectful in deportment toward a NCO by smiling, rolling his head from side to side, and not making eye contact (100816), being disrespectful in deportment towards a NCO by rolling his eyes and nodding back and forth while he was speaking to him (100812), and twice failing to report to his appointed place of duty at the appointed time (101105 and 101020).  His punishment imposed consisted of a reduction to E-1, forfeiture of $723.00 per month for two months (suspended), extra duty for 45 days, 14 days immediately and 31 days suspended.

2.  A Company Grade Article 15, dated 14 April 2011, for failing to report to his appointed place of duty at the appointed times x 5 (110402, 110329, 110328, 110325, and 110322).  His punishment consisted of forfeiture of $250.00 pay per month for one month, suspended.

3.  A Field Grade Article 15, dated 9 January 2012, for failing to report to his appointed place of duty at the appointed times x 4 (111213, 111205 x 2, and 111122), and being disrespectful in deportment towards an NCO by raising his voice and saying to her to “go ahead and chapter him.  He is done with this.”  He is done with this unit, or words to that effect (111214).  His punishment consisted of forfeiture of $822.00 pay per month for two months, suspended, extra duty and restriction for 30 days.

4.  Numerous negative counseling statements covering the period 18 August 2010 through 16 April 2012, for being disrespectful to NCOs, failing to report to his appointed place at the appointed time, indebtedness, and dereliction in the performance of his duty.     

EVIDENCE SUBMITTED BY THE APPLICANT 

None were provided with the application.

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.  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 (drug abuse).

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 4.

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 service record 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.  

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 contends his discharge was inequitable because it was based on him being late four times in four years of service.  A review of the applicant’s record and the commander’s notification letter shows he failed to report over 13 times, and he received three Article 15s for being disrespectful to NCOs and dereliction of duty.  The applicant’s three Articles 15 and numerous negative counseling statements justify misconduct (serious offense).  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.  The applicant’s statements alone do 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.   

5.  Careful consideration was given to the applicant’s in-service accomplishments and the quality of his service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of the discharge.

6.  By regulation, an under other than honorable conditions (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 general discharge instead of the normal UOTHC discharge.  His record was marred by several Articles 15 and numerous counseling statements.  

7.  The applicant contends the narrative reason for the discharge should be changed.  The applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ."  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 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 is no provision for any other reason to be entered under this regulation.  

8.  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.  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:  12 February 2014     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
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)		AR20130010505



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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