IN THE CASE OF:	Mr. 

      BOARD DATE:	26 February 2014

      CASE NUMBER:	AR20130010976
___________________________________________________________________________

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 a change to his narrative reason and re-entry code.  

2.  The applicant states, in effect, he was informed by CPT H of Fort Myer, VA, that with an RE code of 3, as well as, the reason for his discharge, he would receive an honorable discharge.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	10 June 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	29 November 2012
	d.	Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Paragraph 14-
			12b, JKA, RE-3
	e.	Unit of assignment:	H Co, 1st Bn, 3rd US Infantry Regiment, (The Old 
			Guard), Fort Myer, VA
	f.	Current Enlistment Date/Term:	29 August 2011, 6 years, 16 weeks (adjusted)
	g.	Current Enlistment Service:	1 year, 10 days
	h.	Total Service:	1 year, 10 days
	i.	Time Lost:	3 days
	j.	Previous Discharges:	None 
	k.	Highest Grade Achieved:	E-2
	l.	Military Occupational Specialty:	11B10, Infantryman
	m.	GT Score:	NIF
	n.	Education:	HS Graduate
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	NDSM; GWOTSM; ASR
	r.	Administrative Separation Board: 	No 
	s.	Performance Ratings:	None 
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No 

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 29 August 2011, for a period of 6 years and 16 weeks; however, the record reflects date entered active duty was adjusted to 17 November 2011, due to an AWOL period (120725-121011).  He was 20 years old at the time of entry and a high school graduate.  His record documents no acts of valor or significant achievement.  He completed 1 year and 10 days of active duty service.  


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant’s signature.  

2.  The DD Form 214 indicates that on 29 November 2012, the applicant was discharged under the provisions of Chapter 14, Paragraph 14-12b, AR 635-200, for pattern of misconduct, with a characterization of service of general, under honorable conditions.  The DD Form 214 also shows a Separation Program Designator (SPD) code of JKA and a reentry (RE) code of 3.  

3.  The applicant’s available record does not show any recorded actions under the UCMJ.  However, he was separated as a PV1/E-1 and the action that caused his reduction, if any, is not contained in the service record.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 1 year and 10 days of creditable active military service and accrued 3 days of time lost due to being AWOL (120711-120713).  His mode of return from that AWOL period is not in the record.

4.  On 20 November 2012, HQDA, Joint Base Myer – Henderson Hall, Arlington, VA, Orders Number 325-0003, discharged the applicant from the Army effective 29 November 2012.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There are no counseling statements or UCMJ actions in the record.  However, he was discharged as a PVT/E-1; the action that reduced him in rank, if any, is not available in his record.

2.  Drop from Roll Packet, which contains DD Form 616, Report of Return of Absentee, dated 11 October 2012, which indicates the applicant returned to his unit at Fort Myer, VA; DD Form 553, dated 10 August 2012, which indicates the applicant was determined AWOL on 26 July 2012; DD Form 458, Charge Sheet, which shows an AWOL charge from 24 July 2012, was preferred on 19 September 2012; two notification letters to the parents, dated 27 August 2012 and 6 August 2012.

3.  Four DA Form 4187, dated 26 July 2012, for duty status change from PDY to AWOL, effective 25 July 2012; 24 August 2012, for AWOL status change to DFR, effective 24 August 2012; 11 October 2012, for DFR status change to PDY, effective 11 October 2012; and 18 October 2012, for personnel action to stop BAS, because applicant was issued a meal card, effective 17 October 2012.

4.  Separation Orders, dated 20 November 2012, indicate the applicant being discharged effective 29 November 2013.



EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none.

POST-SERVICE ACTIVITY: 

The applicant provided none.  

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 changes to the narrative reason and re-entry code for his discharge was carefully considered.  However, after examining the applicant’s record of service, his military records, and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process.  

3.  The DD Form 214 also indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12b, by reason of pattern of misconduct, with a characterization of service of general, under honorable conditions.  Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant's contentions about being informed that he should have been honorably discharged because of receiving and RE code of 3, and the reason for his discharge were carefully considered.  However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service.  Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted.  The applicant’s statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge.  

5.  If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record.

6.  Although the applicant contends he should have received an honorable discharge due to the narrative reason for his discharge and the reentry code of 3, it appears to be based on an erroneous information.  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.

7.  Furthermore, 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 are 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.

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.  Based on the available evidence, the character of the applicant’s discharge is commensurate with his overall service record.  

9.  Therefore, based on the available evidence and the government presumption of regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review     Date:  26 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)		AR20130010976

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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