IN THE CASE OF:	Mr. 

      BOARD DATE:	5 March 2014

      CASE NUMBER:	AR20130010962
___________________________________________________________________________

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 to upgrade the characterization of his service from general, under honorable conditions to fully honorable and to change the narrative reason for his discharge.

2.  The applicant states, in effect, he loves the US Army and is proud to be a member with over a year of service.  The discharge for misconduct over 14 years ago is an aberration he is seeking to correct.  There are no villains associated with his discharge—he correctly sought to get out of the situation he was in at the time with the command in Darmstadt and it morphed into him incorrectly seeking to be separated from the military, which he painfully regrets.  He was an outstanding Soldier then (very high APFT scores), so the command did not have a lot of rational for a discharge and tried to discourage him.  He went along with his discharge initiated by then CPT C, who was being investigated for serious racial disparities in his actions; however, he personally did not feel any animosity and he was not part of the racial complaint.  His case files for separation has many errors with the origin of documents being suspect and without dates.  He does not wish to vilify those who did this, as it would not have been done unless he requested and provided the stimulus for their actions, appropriate or otherwise.  His request for an upgrade is based on what he did before and after the 10-month period in Darmstadt that led to his discharge.  He served honorably in the CA National Guard from 1995-1997.  He was outstanding in his physical fitness and had very high ASVAB scores.  He was sought after and recommended for Green to Gold and CID.  In his self-authored statement, he listed his achievements.  He states he is a dedicated Christian, though imperfect, he strives to live in Jesus Christ.  He rarely if ever misses service but does so due to being in the field.  He was being punished for low rank and by the ugly separation.  He has never addressed the mistreatment he received.  However, slowly the tables turned in his favor, and now he is often referred to as a super Soldier.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	7 June 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	31 March 1999
	d.	Reason/Authority/SPD/RE Code:	Misconduct, AR 635-200, Paragraph 14-12b, JKA, 
			RE-3
	e.	Unit of assignment:	A Co, 32nd Signal Bn, CMR 440, 
	f.	Current Enlistment Date/Term:	9 June 1997, 4 years
	g.	Current Enlistment Service:	1 year, 9 months, 22 days
	h.	Total Service:	3 years, 11 months, 10 days
	i.	Time Lost:	None
	j.	Previous Discharges:	ARNG (950422-970608) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	31F10 MSE Network Switching System Operator
	m.	GT Score:	129
	n.	Education:	HS Graduate
	o.	Overseas Service:	Germany
	p.	Combat Service:	None
	q.	Decorations/Awards:	ASR
	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 9 June 1997, for a period of 4 years after serving in the Army National Guard.  He was 30 years old at the time of entry and a high school graduate.  He served in Germany.  His record, at the time of his discharge, documented no acts of valor or significant achievement.  He completed 3 years, 11 months, and 10 days of active duty and reserve service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 26 February 1999, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct; specifically, for receiving a company grade Article 15 (990122) for violating a lawful regulation, disobeying a lawful order, and failing to report to his place of duty, and receiving a company grade Article 15 (980701) for willfully disobeying orders, disrespecting an NCO, and threatening an NCO. 

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 1 March 1999, the applicant consulted 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 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.  On 10 March 1999, the separation authority, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions under the provisions of AR 635-200, paragraph 14-12b, for pattern of misconduct.

5.  The applicant was separated on 31 March 1999, under Army Regulation 635-200, Chapter 14-12b (Pattern of Misconduct), with a general, under honorable conditions discharge, an SPD code of JKA and an 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.  Article 15, dated 22 January 1999, for violating a lawful general regulation (981221), disobeying an NCO (981221), and failing to go to his appointed place of duty on two separate occasions (981215, 981027).  The punishment consisted of reduction to the grade of E-2, forfeiture of $150 (suspended), 14 days of extra duty and restriction, (CG). 

2.  Article 15, dated 1 July 1998, for disobeying an NCO on two separate occasions (980519), being disrespectful in deportment toward an NCO (980519), and communicating a threat to an NCO (980519).  The punishment consisted of reduction to the grade of E-3, forfeiture of $244 (suspended), 14 days of extra duty and 14 days of restriction (suspended), (CG).

3.  Fourteen negative counseling statements, dated between 19 May 1998 and 25 January 1999, for driving without a valid USAREUR license and revoked license; leaving his place of duty without authority; failing to be at his appointed place of duty at the prescribed time; disrespecting an NCO; communicating a threat to an NCO; having a negative attitude and performance; his driver’s license being suspended; having to provide proof of insurance on his car; being relieved for cause and being released back to his unit; and work performance needing improvement.
      
4.  Three memoranda for record dated 19 and 20 May 1998, signed by 1LT F, SFC J, and 
SFC B, detailing a verbal counseling session with the applicant regarding the schedule of his appointments and the applicant’s confrontational disposition toward his superiors.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a memorandum, dated 1 March 1999, subject: Proposed Separation of [the applicant] rendered by a trial defense counsel for consideration of changing the applicant’s proposed separation under paragraph 14-12b, AR 635-200, pattern of misconduct to chapter 13, unsatisfactory performance; CAARNG orders, dated 10 June 2012, for award of CA Good Conduct Medal for period 28 July 2006 to 27 July 2009; memorandum for record, dated 10 June 2012, indicates the award of ARCAM; and memorandum, dated 28 March 2012, subject: Authorization for Longevity Award, CADAR-1 SS indicating 5th award..

POST-SERVICE ACTIVITY: 

The applicant states he is currently serving as an active Army National Guard. 

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 to change the narrative reason for his discharge was carefully considered.  However, after examining the applicant’s record of service, his military records, and 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 pattern 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 two Article 15 actions for multiple violations of the Uniform Code of Military Justice and negative counseling statements.

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 the discharge was unjust because his separation case file contains many errors with the origin of the documents being suspect and without dates.  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 may have been unjustly discriminated.  In fact, the applicant’s two Article 15 actions and the multiple negative counseling statements justify a pattern of misconduct.  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.  The applicant contends his request for an upgrade to fully honorable is based on what he did before and after the 10-month period in Darmstadt that led to his discharge—he served honorably for two years in the Army National Guard and had been an outstanding Soldier with high APFT and ASVAB scores at the time of his entry on active duty, and his numerous achievements while serving in the Army National Guard.  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 the repeated incidents of misconduct or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.

6. The applicant contends that he was harrassed and rigorously mistreated; however, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge. 

7.  Furthermore, The applicant contends he is currently serving as an active Army National Guard.  The applicant’s subsequent accomplishments have been noted as outlined on the application and in the documents with the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  

8.  The applicant contends the narrative reason for the discharge should be changed.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," and the separation code is "JKA."  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.  

9.  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.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

10.  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:  5 March 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)		AR20130010962

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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