IN THE CASE OF:  	Mr. 

      BOARD DATE:  	8 January 2014

      CASE NUMBER:  	AR20130011037
___________________________________________________________________________

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 characterization from general, under honorable conditions to honorable and a change to the narrative reason for the discharge.

2.  The applicant states, in effect, his discharge was unjust.  He states he had an affair and left his wife for his current fiancé.  He contends his NCO punished him only because his ex-wife complained and the NCO allowed another Soldier get away with the same offense.  His commander believed he should be discharged honorably but his battalion commander disagreed with his discharge however, he requested to be discharged due to an injury that was not being treated properly.  He contends he served honorably during his time in the military.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			10 June 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				12 October 2012
d. Reason/Authority/SPD/RE Code:		Misconduct (Serious Offense), AR 635-200
Chapter 14-12c, JKQ, RE-3
e. Unit of assignment:				HHC, 2nd Brigade Special Troops Battalion
(Rear)(Provisional), Fort Campbell, KY
f. Current Enlistment Date/Term:		30 August 2010/5 years
g. Current Enlistment Service:		2 years, 1 month, 13 days
h. Total Service:				2 years, 1 month, 13 days
i. Time Lost:					None
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		31B10, Military Police
m. GT Score:					91
n. Education:					High School
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			NDSM, GWOTSM, ASR
r. Administrative Separation Board: 		N/A
s. Performance Ratings:			N/A
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 30 August 2010 for a period of 5 years.  He was 19 years old at the time of entry and had a high school letter.  His record is void of any significant achievements and acts of valor.  He completed 2 years, 1 month, and 13 days of active duty service.  When discharge proceedings were initiated, he was serving at Fort Campbell, Kentucky.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 13 September 2012, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, for misconduct, (serious offense).  Specifically for having sexual intercourse with a married woman not his wife on several occasions.

2.  Based on the above, the commander recommended a general, under honorable conditions discharge.

3.  On 19 September 2012, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, 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 a general, under honorable conditions discharge.  

4.  On 2 October 2012, 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 14-12c, for the commission of a serious offense.

5.  The applicant was separated on 12 October 2012, under Army Regulation 635-200, Chapter 14-12c, with a general, under honorable conditions discharge, an SPD code of JKQ, 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 9 August 2012, on divers occasions, wrongfully had sexual intercourse with Mrs. M, a married woman not his wife, which conduct was prejudicial to the good order and discipline and brought discredit upon the armed forces.  The punishment consisted of reduction to the grade of E-1, forfeiture of $745 per month for two months (suspended), 45 days of extra duty and restriction (FG).

2.  AR 15-6 investigation findings and recommendations, dated 5 June 2012, indicating the applicant admitted in a sworn statement to committing adultery with a married woman and Investigating Officer recommending the applicant receive non-judicial punishment (NJP) under the Uniform Code of Military Justice UCMJ).
      
3.  Six negative counseling statements dated between 9 April 2012 and 15 May 2012, for noncompliance with the Army’s Body Fat standards, potential bar to reenlistment, verbal altercation with spouse; and failure to obey Article 91 of the UCMJ.
      
4.  DA Form 2823 (Sworn Statement) from the applicant, dated 1 June 2012.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, dated 26 May 2013, and a DD Form 214 (Certificate of Release or Discharge from Active Duty).

POST-SERVICE ACTIVITY: 

The applicant did not provide any in support of 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 14-12c, misconduct (serious offense).

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 his characterization, the reason for his discharge and reentry code was carefully considered.  However, after examining his military records, the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or change the reason for his 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 honorable discharge.  The applicant’s record of service was marred by a FG Article 15 for a violation of the UCMJ and six 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 his discharge was unjust because he served honorably during his time in the military.  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 Article 15 and numerous negative counseling statements 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 to support an upgrade of the discharge.   

5.  The records show the proper discharge and separation authority procedures were followed in this case.  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:  8 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:		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)		AR20130011037



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1