IN THE CASE OF:  	Mr. 

      BOARD DATE:  	10 January 2014

      CASE NUMBER:  	AR20130011000
___________________________________________________________________________

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 was both proper and equitable and voted to deny relief.  

2.  Further, notwithstanding the propriety of the applicant's discharge, the Board voted to change the applicant’s reason for discharge, authority separation code, and reentry code on the basis of equity as it had been approved by the separation authority:

     a.  block 25 separation authority changed to AR 635-200, Para 14-5, sec II
     b.  block 26, separation code changed to JKB
     c.  block 27, reentry code changed to 3
     d.  block 28, narrative reason for separation changed to Misconduct (Civil Conviction)



      
      
      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 under other than honorable discharge (UOTH) to general, under honorable conditions.

2.  The applicant states, in effect, he was erroneously discharged because he was recalled by the State of Washington National Guard on 1 September 2004 due to a medical injury received during training at Fort Benning, Georgia.  He contends he was considered a deserter, received an UOTH discharge because his paperwork was not completed, and was harassed while on convalescent leave by SFC H while recovering from abuse by a drill sergeant.  He contends his leave paperwork was signed by his battalion and unit commanders. 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			10 June 2013
b. Discharge Received:			Under Other than Honorable Conditions
c. Date of Discharge:				26 November 2010
d. Reason/Authority/SPD/RE Code:		Misconduct (Serious Offense), AR 635-200
Chapter 14-12c, JKQ, RE-4
e. Unit of assignment:				Personnel Control Facility, U.S. Army Garrison
Fort Sill, OK
f. Current Enlistment Date/Term:		25 April 2004/NIF
g. Current Enlistment Service:		6 years, 3 months, 25 days
h. Total Service:				7 years, 4 months, 12 days
i. Time Lost:					97 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:			None
r. Administrative Separation Board: 		No
s. Performance Ratings:			No
t. Counseling Statements:			NIF
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 25 April 2004 for an unknown period.  He was 28 years old at the time of entry and a high school graduate.  His record is void of any significant acts of valor or achievement.  He completed 7 years, 4 months, and 12 days of military service.  When his discharge proceedings were initiated, he was serving at Fort Sill, Oklahoma.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 30 August 2010, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-5, section II, for misconduct, civil conviction. Specifically for a conviction by a judge of the 52nd District Court in Coryell County, Texas, on 9 July 2010, for forgery of a financial instrument, credit card abuse and a sentence of 10 months.

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge.

3.  On 1 September 2010, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, fully waived his right to an administrative separation board, and did not submit a statement in his own 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 with an under other than honorable conditions discharge.  

4.  On 10 November 2010, the separation authority approved the waiver request and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  

5.  The applicant was separated on 26 November 2010, under Army Regulation 635-200, Chapter 14-12c, with a under other than honorable conditions discharge, an SPD code of JKQ, and an RE code of 4.

6.  The applicant's record shows he was absent without leave (AWOL) for a total of 97 days (040804-040905, 040909-041009, and 100604-100709).  The applicant’s record shows he was apprehended by civilian authorities and returned to military control on 
4 June 2010.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Enlisted Record Brief (ERB), dated 19 October 2010, shows the applicant’s MOS as 11B.

2.   A memorandum to Mr. M., Senior Warden, Lindsey State Jail, Jacksboro, Texas, dated 18 August 2010, indicating the applicant was incarcerated in the facility based on a conviction by a civilian court.

3.  Judgment of Conviction by Court-Waiver of Jury Trial, Case No. FT-06-18332, dated 9 July 2010, reflecting the applicant’s guilty plea for credit card abuse.  The applicant’s punishment consisted of 10 months state jail division and $228.00 in court costs.
      
4.  Judgment of Conviction by Court-Waiver of Jury Trial, Case No. FT-06-18331, dated 9 July 2010, reflecting the applicant’s guilty plea for forgery of a financial instrument.  The applicant’s punishment consisted of 10 months state jail division and $233.00 in court costs, $400.00 attorney fees, and $1200.00 restitution.

5.  DA Form 458 (Charge Sheet), dated 9 September 2004, for on or about 9 September 2004, without authority and with intent to remain away from permanently, absent himself from his unit, 1st Battalion, 19th Infantry, Fort Benning, Georgia, and remained so absent in desertion until. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provides in support of his application a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 3 May 2013, an undated self-authored statement addressing his contentions, a DD Form 214 (Certificate of Release or Discharge from Active Duty), a SGLV Form 8286, (Servicemembers’ Group Life Insurance Election and Certificate), dated 10 March 2004, DD Form 1966, pages 2 and 4, DA form 5435-R (Statement of Understanding-The Selective Reserve Montgomery GI Bill), dated 10 March 2004, NGB Form 21 (Annex A-DD Form 4 Enlistment/Reenlistment Agreement-Army National Guard), dated 10 March 2004, two DA Forms 4187 (Personnel Action), dated 9 September 2004 and 9 October 2004, changing the applicant’s duty status from present for duty (PDY) to AWOL  and from AWOL to dropped from the rolls (DFR), DD Form 553 (Deserter/Absentee wanted by the Armed Forces) dated 9 October 2004, NGB Form 23, 23A, and 23A1, dated 17 November 2004, reflecting the applicant’s Army National Guard current annual statement and retirement points statement, DD Form 616 (Report of Return of Absentee), dated 4 June 2010 showing the applicant was returned to military control by civilian authorities, Orders 322-1325, dated 18 November 2010, from the Department of the Army, Headquarters, US Army Garrison, Fort Sill, Fort Sill, Oklahoma, discharging the applicant effective 26 November 2010, and his case separation file detailing the facts and circumstances surrounding his discharge.

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 "JKB" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14-5 section II, misconduct (Civil Conviction).  

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 of his service below that meriting a general or a fully honorable discharge.  The applicant’s record of service was marred by his conviction by a civilian court for forgery financial instrument and credit card abuse.

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 he was erroneously discharged because he was recalled by the State of Washington due to a medical injury to be processed out in September 2004 but the paperwork was not complete when he left Fort Benning, Georgia and he was classified as a deserter six years later.  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 was unjustly discriminated.  In fact, the applicant’s conviction by a civilian court for forgery of a financial instrument and credit card abuse justify the 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 further contends that he was harrased by a member of his chain of command; 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.

6.  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.

7.  However, the service record reflects an erroneous entry on the applicant’s DD Form 214, block 25, separation authority as “AR 635-200, para 14-12c”, block 26, separation code as “JKQ”, block 27, RE code “4” and block 28, narrative reason for separation as “Misconduct (Serious Offense) was made during the discharge process.

8.  Accordingly, as approved by the separation authority, the following administrative corrections are recommended:

     a.  block 25 separation authority changed to AR 635-200, Para 14-5, sec II
     b.  block 26, separation code changed to JKB
     c.  block 27, reentry code changed to 3
     d.  block 28, narrative reason for separation changed to Misconduct (Civil Conviction)

9.  Except for the modifications as stated above the discharge was both proper and equitable, therefore, recommend the Board deny relief.












SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review     Date:  10 January 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:		Yes
Change Characterization to:	No Change
Change Reason to:			Misconduct (Civil Conviction)
Change Authority for Separation:	AR 635-200, Chapter 14-5, Section II
Change RE Code to:		3
Grade Restoration to:		NA
Other:					Separation Program Designator (SPD) code JKB


















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)		AR20130011000



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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