IN THE CASE OF:  	Mr. 

      BOARD DATE:  	28 April 2014

      CASE NUMBER:  	AR20130012076
___________________________________________________________________________

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.

2.  He states, in effect, his service was honorable while serving on active duty to include a combat tour in Iraq.  His family faced uncertainty with the life and death of his wife and child, due to a dangerous condition called preeclampsia.  He was tormented and it made him feel much more stressed and worried mentally than ever before.  He has been out of the military four years and still feels he should have been granted an honorable discharge. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		27 June 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			21 February 2009
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			E Company, 3-2nd Aviation Regiment, APO AP 						96271
f. Current Enlistment Date/Term:	13 December 2007, 4 years
g. Current Enlistment Service:	11 months, 25 days 
h. Total Service:			3 years, 5 months, 20 days
i. Lost time:				75 days
j. Previous Discharges:		RA (050616-071212)/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	92G10, Food Service Operations
m. GT Score:				85
n. Education:				HS Graduate
o. Overseas Service:			Korea/Southwest Asia
p. Combat Service:			Iraq (specific dates not in file)
q. Decorations/Awards:		AAM,NDSM, ICM-W/CS, GWOTSM, KDSM, ASR 						OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant's record shows he enlisted in the Regular Army on 16 June 2005, for a period of 3 years and 20 weeks.  He was 21 years old at the time of entry and a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 92G10, Food Service Operations.  He reenlisted on 13 December 2007 for a period of 4 years and was 23 years old at the time.  His record also shows that he served a combat tour, earned an AAM; and he achieved the rank of SPC/E-4.  He was serving in Korea when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 14 January 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct (serious offense) for absenting himself from his unit from (080727-080912), beginning date of AWOL period should be 27 June 2007.

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 6 February 2009, the applicant consulted with legal counsel (although his election of rights indicated he waived 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 with a general, under honorable conditions discharge.

4.  On 6 February 2009, 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 from the Army on 21 February 2009, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

6.  The applicant’s record of service indicates 75 days of time lost for being AWOL from         27 June 2008 through 11 September 2008, mode of return unknown.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 29 October 2008, for without authority, absenting himself for his unit (AWOL) (080727-080912); the punishment consisted of reduction to E-1, extra duty for 30 days, and restriction for 30 days, (FG).  

2.  An Article 15, dated 30 May 2008, for wrongful use of provoking words and gestures (080427); and unlawfully poking PV2 B.J. in the eye with his finger (080427); the punishment consisted of extra duty for 14 days, and restriction for 14 days, (summarized).

3.  The applicant received a negative counseling statement, dated 22 December 2008 for chapter request notification for being AWOL.

4.  The record contains three DA Form 4187 (Duty Status Change), dated between 8 July 2008 through 13 September 2008, which indicated the applicant’s the AWOL, dropped from rolls and present for duty dates.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 dated 12 June 2013, DD Form 214 and a self authored statement dated 24 June 2013.  

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.

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 issues and documents 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 (serious offense), the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by two Articles 15 and one negative counseling statement.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.

4.  The applicant requested a change to the narrative reason for separation to include the RE code.  However, 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).  The regulation further stipulates that no deviation is authorized.  

5.  The applicant contends his service was honorable while serving on active duty to include a combat tour in Iraq.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceedings were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of the discharge under review.

6.  The applicant further contends his family faced uncertainty with the life and death of his wife and child, due to a dangerous condition called preeclampsia.  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.  

7.  The applicant also contends he has been out of the military four years and still feels he should have been granted an honorable discharge.  The US Army does not have, nor has it ever had, a policy to upgrade a discharge based on time elapsed since the discharge.  Each case is decided on its own merits based on all factors contained in the official record or as submitted by the applicant.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge or both were improper or inequitable.

8.  The applicant contends he was tormented and it made him feel much more stressed and worried mentally than ever before.  The record of evidence does not demonstrate that he sought relief from stress through his command or the numerous Army community services like the Chaplain, Army Community Services, Community Counseling Center, and other medical resources available to all Soldiers.  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.

9.  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:  28 April 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)		AR20130012076



Page 2 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1