IN THE CASE OF:  	Mr. 

      BOARD DATE:  	25 April 2014

      CASE NUMBER:  	AR20130012322
___________________________________________________________________________

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 under other than honorable conditions to general, under honorable conditions.  

2.  The applicant states, in effect, that his discharge is an error because he was supposed to be sent to Iraq, but he was picked up and placed in jail.  He could not help the fact that he had a charge pending and had to go to trial.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		1 July 2013
b. Discharge received:			Under Other than Honorable Conditions
c. Date of Discharge:			30 September 2004
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, Chapter 14, Sec II 							JKB, RE-3
e. Unit of assignment:			Co B, 276 th Eng Bn, Cedar Bluff, VA
f. Current Enlistment Date/Term:	OAD/18 December 2003, 730 days	
g. Current Enlistment Service:	9 months, 13 days
h. Total Service:			25 years, 1 month, 13 days
i. Time Lost:				None
j. Previous Discharges:		USAR (790830-790920), NA									RA      (790921-930315), HD									USAR (930316-951015), NA									ARNG (951016-031217), NA
(Concurrent Service)
k. Highest Grade Achieved:		E-6
l.  Military Occupational Specialty:	63B10, Light Wheel Vehicle Mechanic 
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			Germany, Korea
p. Combat Service:			None
q. Decorations/Awards:		ARCOM, AAM-4, AGCM-4, NDSM, ARCAM-2,
      NPDR, ASR, OSR-2 
r. Administrative Separation Board: 	NIF
s. Performance Ratings:		Yes
t. Counseling Statements:		NIF
u. Prior Board Review:			No




SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 21 September 1979 and received an HD on 
15 March 1993, and was transferred to the USARCG (Reinforcement).  He enlisted in the VA NG on 16 October 1995 for a period of six years.  On 15 September 2001, he extended his period of service in the NG for six years.  He served in Germany and Iraq during his previous period of service.  He was awarded an ARCOM, AAM-4, AGCM-4, NDSM, ARCAM-2, NPDR, ASR, and an OSR.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  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.  He was discharged as a PVT/E-1.

2.  The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, sec II, misconduct, with a characterization of under other than honorable conditions.  The DD Form 214 shows a Separation Program Designator (SPD) code of JKB (Civil Conviction) and a reentry (RE) code of 3.  

3.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.  However, the applicant stated in his issue he was picked up by the civilian authorities because he had a charge pending and was placed in jail. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Several NCOER’s covering rating periods from 1 October 1983 through 31 October 2003.  All of the evaluations reflected successful ratings with recommendations that the applicant be promoted.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 149, dated 26 June 2013, and a DD Form 214.

POST-SERVICE ACTIVITY: 

None were provided with the 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 available record of service, the issues and documents 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 applicant’s record does contain 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 the presumption of government regularity shall prevail in the discharge process.  

3.  The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200; section II, by reason of misconduct, with a characterization of service of under other than honorable conditions, a separation program designator (SPD) code “JKB (i.e., civil conviction), and an reentry eligibility (RE) code of 3.  Barring evidence to the contrary, it appears that all 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 were carefully considered.  However, it is not possible to determine if these contentions have merit because the facts and circumstances leading to the discharge are unknown.  The burden of proof remains with the applicant to provide the appropriate documents or other evidence (i.e. discharge packet) sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.  If the applicant desires a personal appearance hearing, it will be his responsibility to meet this burden of proof since the evidence is not available in the official record.
5.  Therefore, based on the available evidence and the government presumption of regularity, it appears the reason for discharge and the characterization of service were both proper and equitable, thus recommend the Board deny relief. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  25 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)		AR20130012322



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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