IN THE CASE OF:  	Mr. 

      BOARD DATE:  	28 March 2014

      CASE NUMBER:  	AR20130012495
___________________________________________________________________________

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 a change to the narrative reason for discharge.

2.  The applicant states, in effect, the reasons his narrative reasons for separation should be changed are as follows:

	a.  the investigation was conducted poorly and improper,
	b.  no blood alcohol content test or blood draw,
	c.  convictions were based off hearsay only, no solid facts or evidence were ever brought to light, 
	d.  commander abused his authority to convict persons without proper procedure or evidence, and
	e.  considering the entirety of his military education and background.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		2 July 2013
b. Discharge Received:		Honorable Discharge	
c. Date of Discharge:			8 March 2013 						
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, Chapter 	      					14-12c, JKQ, RE-3
e. Unit of assignment:			HSC, 2nd Battalion, 1st Special Forces Group 							(Airborne), Joint Base Lewis-McChord, WA
f. Current Enlistment Date/Term:	27 April 2012, 6 years 	
g. Current Enlistment Service:	10 months, 9 days
h. Total Service:			9 years, 7 months, 2 days
i. Time Lost:				None
j. Previous Discharges:		RA (030807-050420), HD										RA (050421-071203), HD										RA (071204-120426), HD	
k. Highest Grade Achieved:		E-6
l. Military Occupational Specialty:	18C, Engineer Sergeant
m. GT Score:				105
n. Education:				HS Graduate
o. Overseas Service:			Philippines and SWA X 3
p. Combat Service:			Afghanistan (040702-041005), Iraq (051015-							060128), Afghanistan (100105-100805), and 							Philippines (120127-120828) 
q. Decorations/Awards:		BSM, AGCM-3, NDSM, ICM-w/CS-2, GWOTEM, 						GWOTSM, NPDR-2, ASR, OSR, NATO MDL, CIB, 						CAB, ACW-w/CS-2 
r. Administrative Separation Board: 	No
s. Performance Ratings:		None	
t. Counseling Statements:		No
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 7 August 2003, for a period of 3 years.  He was 18 years old at the time of entry and a high school graduate.  He reenlisted three additional times and served for a total of 9 years, 7 months and 2 days of active military service.  At the time the discharge proceedings were initiated he was serving at Joint Base Lewis-McChord, WA.  His record shows he was awarded a BSM, three AGCMs, CIB, CAB, and served in four combat tours (Afghanistan, Iraq and Philippines).  

SEPARATION FACTS AND CIRCUMSTANCES

1.  The record shows that on 19 October 2012, 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), specifically for:

	a.  On 27 August 2012, while deployed in support of Joint Special Operations Task Force-Philippines, he violated a lawful general order, to wit: paragraphs 4.a. (2) and 4.c., SOCPAC Policy Number 11 02 General Order One, Expectations and Prohibited Activities, dated 22 August 2011, by wrongfully consuming alcohol and fraternizing with local national females,

	b.  As a result, he was ordered to redeploy to Joint Base Lewis-McChord by COL M, and was directly ordered to not become intoxicated or engage in any activity which would bring discredit upon himself or the United States Armed Forces.  However, he arrived at Seattle-Tacoma International Airport in an intoxicated state,

	c.  This was not his first alcohol related incident as a member of 2nd Battalion, 1st Special Forces Group (Airborne).  On 6 August 2009, he received a FG Article 15 for violating Article 134 of the UCMJ, unlawful entry.  While intoxicated, he entered a female-only barracks facility through an open window, awoke a female junior enlisted Soldier, and requested a
cigarette.  That Soldier immediately instructed him to leave.  However, he returned a few minutes later and fell asleep in that same Soldier’s bed.  The Soldier tried to wake him up and get him out of her bed.  She was unsuccessful, which forced her to sleep in another bed.  Later that morning, another Soldier woke him up, and he immediately fled the premises.  The applicant was apprehended by the Yakima Training Center Police,

	d.  On 23 May 2009, he failed to report to coordination meetings for his detachment’s
redeployment from Thailand.  The meeting was scheduled for 0900 in the lobby of the motel. At 0915, he still had not arrived.  This was his second failure to report in a 30-day period,

	e.  On 9 May 2009, he failed to report to a recreational dive planned led by the host nation equivalent of a battalion commander.  He was instructed the night prior as to the time and place of the event, and he was also told to limit his alcohol intake.  However, he arrived to the event 20 minutes late and drunk.  The host nation commander noticed his intoxication and questioned his ability to participate in the event, and 
	
	f.  On 7 May 2009, while at a bar in Lop Buri, Thailand, he became intoxicated and disobeyed the orders of the team assistant detachment commander to return to the barracks. The applicant also used aggressive language and mannerisms in the presence of host nation civilians.

2.  The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 25 October 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested an appearance before an administrative separation board, 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 an under other than honorable conditions discharge. 

4.  The record is void of the applicant’s administrative separation board’s notification.  

5.  On 7 December 2012, the applicant again consulted with legal counsel and voluntarily waived consideration of his case by an administrative separation board, contingent upon his receiving a characterization of service of no less favorable than an honorable discharge.  The applicant submitted a statement on his own behalf (NIF).  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed action and recommended approval with an honorable discharge.  

6.  On 17 December 2012, the separation authority approved the conditional waiver request, waived further rehabilitation and directed the applicant’s discharge with a characterization of service as honorable.

7.  The applicant was discharged from the Army on 8 March 2013, with a characterization of service of honorable under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

8.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  A FG Article15, dated 26 September 2012, for disobeying a lawful order from two commissioned officers not to consume alcohol (120831), wrongfully possessing and consuming alcoholic beverages within the USPACOM AOR (between 120826-120828), wrongfully fraternizing with foreign national females (between 120826-120828), with intent to deceive, making a false official statement to a commissioned officer (120906), being found drunk while on duty while redeploying from a combat theater (120831), and being found drunk and disorderly, such conduct being prejudicial to good order and discipline in the armed forces (120826-120828).  His punishment consisted of a reduction to sergeant (E-5); forfeiture of 
$1,422.00 pay; extra duty for 45 days and restriction for 45 days, suspended, and an oral reprimand.

2.  Referral to an Administrative Separation Board, dated 8 November 2012.  

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided two online DD Form 293s, a DD Form 214, and two character reference letters.

POST-SERVICE ACTIVITY: 

None were provided 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 14-12c, 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 a change to the reason for his discharge was carefully considered.  However, after examining the applicant’s record of service, the issues and documents submitted with the application, there are insufficient factors to merit a change to the narrative reason for the discharge.    

2.  The applicant contends that he is requesting an upgrade in the form of a narrative reason change.  The applicant was discharged under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct (serious offense) with an honorable characterization.    The narrative reason specified by Army Regulations in effect at the time 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 entered 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.  

3.  The applicant contends the investigation was conducted poorly and improper, no blood alcohol content test or blood draw was done, convictions were based off hearsay only, no solid facts or evidence were ever brought to light, the commander abused his authority to convict persons without proper procedure or evidence, and the entirety of his military education and background was not considered.  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 discharged.  In fact, the applicant’s Articles 15 justifies a misconduct (serious offense) discharge.  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.   

4.  The third party statements provided with the application denies that the applicant was not drunk on several occasions listed in the commander’s notification letter.  In addition, none of these statements provide any evidence sufficiently compelling to overcome the presumption of regularity.

5.  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.  

6.  The records show the proper discharge and separation authority procedures were followed in this case.

7.  In view of the foregoing, the narrative reason for discharge being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  28 March 2014       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  NA	No Change:  NA
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:	NA
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)		AR20130012495



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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