IN THE CASE OF:  	Mr. 

      BOARD DATE:  	21 March 2014

      CASE NUMBER:  	AR20130011574
___________________________________________________________________________

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.  

2.  The applicant states, in effect, that he believes his discharge should be changed.  He went and asked his command sergeant major (CSM) to let him out of the US Army, because it would be easier on both the unit and himself.  He was in the middle of a major custody battle, due to his ex-wife's boyfriend molesting his daughter many times.  Under a lot of stress from the court case and the molestation of his daughter, he wasn't able to go to the field exercises and he had argued with his platoon sergeant many times because he would not let him take care of some very important family matters.  He received two Article 15s because the unit went on lock down because of some lost sensitive items.  He and his wife had just left the emergency room due to her having re-occurring pains from having her gall bladder removed.  He left the emergency room and went to “check in.”  When he arrived at the unit, SFC J told him to sit down.  He informed SFC J that his wife was medicated, with a five month old baby in the car and needed to go home.  He was told that he could not leave; however, he left and took his wife home.  This resulted in disobeying two commissioned officers and he received a several negative counseling statements that went to solidify the Article 15.  The Company Grade Article 15 was because he was late for staff duty and missing one day of extra duty.  Both times he called and informed the staff duty personnel.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		14 June 2014
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			9 December 2010
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200,
Chapter 14-12c, JKQ, RE-3        
e. Unit of assignment:			HHT, 1st Squadron, 7th U.S. Cavalry Regiment,
1st Brigade Combat Team, 1st Cavalry Division,
Fort Hood, TX
f. Enlistment Date/Term:		25 November 2008, 5 years 
g. Current Enlistment Service:	2 years, 15 days
h. Total Service:			4 years, 4 months, 22 days
i. Time Lost:				None
j. Previous Discharges:		RA (060718-081124), HD 
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	13F10, Fire Support Specialist
m. GT Score:				98
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (071012-081114)
q. Decorations/Awards:		ARCOM, AAM, AGCM, NDSM, ICM-w/CS, 							GWOTSM, ASR, OSR, CAB
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 18 July 2006, for a period 4 years and 18 weeks, he was 17 years old at the time and a high school graduate.  He reenlisted on 26 November 2008, for a period of five years.  When his discharge proceedings were initiated he was serving at Fort Hood, TX.  The record shows he was awarded an ARCOM, AAM, a CAB, and served a combat tour of duty in Iraq in 2007.    

SEPARATION FACTS AND CIRCUMSTANCES

1.  The record shows that on 16 November 2010, 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 the following offenses:

	a.  Without authority, leaving his appointed place of duty without being released (091027 and 100723).

	b.  Failing to go at the time prescribed to his appointed place of duty (100812). 

	c.  Willfully disobeyed a lawful order from SFC J, to get his gear and load up a truck (100927).

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 17 November 2010, 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 on 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 21 November 2010, 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 26 February 2009, for misconduct (serious offense), under the provisions of AR 635-200, Chapter 14-12c, with an SPD code of JKQ and an RE code of 3.

6.  The applicant’s record does not show any evidence of lost time.



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  A Field Grade Article 15, dated 18 October 2010, for without authority, leaving his appointed place of duty without being released (091027), failing to go at the time prescribed to his appointed place of duty (100723 and 100812), and willfully disobeying a lawful order from SFC J, to get his gear and load up a truck (100927).  His punishment consisted of a reduction to E-3, forfeiture of $961.00 pay per month for two months and restriction for 45 days both suspended, and extra duty for 45 days, and an oral reprimand.  

2.  A Company Grade Article 15, dated 29 October 2010, for failing to go at the time prescribed to his appointed place of duty (101019 and 101023).  His punishment consisted of a reduction to E-2, extra duty for 14 days, and restriction for 14 days, suspended. 

3.  Several counseling statements covering the period 18 August 2009 through 23 October 2010, for failing to report to his appointed place of duty, failing to return calls and text messages, reporting to duty without his beret, failing to honor his obligation to meet with the Texas Department of Family and Child Protective Services, and missing appointments.  

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided an online DD Form 293, DD Form 214, a social security card and birth certificate for verification.

POST-SERVICE ACTIVITY: 

None stated by the applicant.

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, paragraph 14-12c, for 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 the characterization of his discharge was carefully considered.  However, after examining the applicant’s service record, 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 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 his repeated misconduct, the applicant diminished the quality his service below that meriting an 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 he believes his discharge should be changed on the fact that he went and asked his CSM to let him out of the US Army, because it would be easier on both the unit and himself.  He was having many family issues.  The record of evidence does not demonstrate that he sought relief from his family issues through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other resources available to all Soldiers.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  

5.  The applicant further contends he received two unjust Article 15s.  He made phone calls when he was going to be late, requested time to take care of family issues, and was denied each time.  The applicant’s contentions are noted; however, 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.  Furthermore, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

6.  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.  

7.  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:  21 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:	2	No Change:  3
(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)		AR20130011574



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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