IN THE CASE OF:	Mr.

      BOARD DATE:	21 March 2014

      CASE NUMBER:	AR20130012891
___________________________________________________________________________

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 to change the narrative reason for his discharge, and its corresponding separation authority, separation code, and reentry code.

2.  The applicant states, in effect, his current discharge under paragraph 14-12b, AR 635-200, requires that adequate counseling and rehabilitative measures before initiating separation proceedings,” and that paragraph 1-16b mandates at least one formal counseling session and evidence that deficiencies continued after the initial formal counseling session.  However, his separation packet lacks any evidence of such counseling or continued deficiencies.  Since the requirements were not satisfied, he requests to amend blocks, 25 through 28 to reflect non-disciplinary information for separation authority, separation code, reentry code, and narrative reason for his discharge, respectively. 

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	10 July 2013
	b.	Discharge Received:	Honorable
	c.	Date of Discharge:	7 June 2013
	d.	Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Paragraph 14-
			12b, JKA, RE-3
	e.	Unit of assignment:	CO F, 2nd Bn, 501st Aviation Regiment, Combat 
			Aviation Brigade, 1st AD, Fort Bliss, TX
	f.	Current Enlistment Date/Term:	28 March 2008, 5 years 
	g.	Current Enlistment Service:	5 years, 2 months, 10 days
	h.	Total Service:	6 years, 9 months, 28 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (060810-080327) / HD
	k.	Highest Grade Achieved:	E-5
	l.	Military Occupational Specialty:	74D10, Chemical Operations Specialist
	m.	GT Score:	89
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Afghanistan (100712-110623), Iraq (020615-090604)
	q.	Decorations/Awards:	ARCOM-2; AAM; AGCM-2; NDSM; ACM-CS; ICM-2CS 
			GWOTSM; NPDR; ASR; OSR-2; NATO MDL; MUC
	r.	Administrative Separation Board: 	No, conditionally waived
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 10 August 2006, and reenlisted on 28 March 2008, for a period of five years.  His record indicates an ETS date of 27 February 2014; however, there is no further record of any extension or reenlistment available.  He was19 years old at the time of entry and a high school graduate.  He served in Afghanistan and Iraq.  He earned two ARCOMs and an AAM awards. He completed 6 years, 9 months, and 28 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 8 May 2013, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct, specifically for the following offenses: 

	a.	wrongfully using marijuana (130221); 
	b.	being arrested by the El Paso Police Department for assault causing bodily injury 			(111220);
	c.	being arrested by Fort Hood Military Police for driving with a suspended license 				(110908); and  
	d.	wrongfully using marijuana (090921).

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

3.  On 8 May 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions 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 of the separation with a general, under honorable conditions discharge.  

4.  On 30 May 2013, the General Court-Martial Convening Authority waived further rehabilitation and directed the applicant’s discharge with an honorable characterization of service.

5.  On 30 May 2013, in a separate memorandum, the General Court-Martial Convening Authority, found that the applicant’s medical conditions were not a direct or substantial contributing cause of the misconduct, which led to his administrative separation, and the circumstances in the applicant’s case did not warrant disability processing.  

6.  The applicant was discharged from the Army on 7 June 2013, with a characterization of service of honorable under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for pattern of misconduct, a Separation Program Designator code (SPD) of JKA and an RE code of 3. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Memorandum for Record, dated 8 May 2013, subject:  Proposed Administrative Separation under Army Regulation (AR) 635-200, Chapter 14-12b, A Pattern of Misconduct [the applicant], indicates the servicing trial counsel, upon a thorough review, found the administrative separation packet pertaining to the applicant legally sufficient.

2.  There is a positive urinalysis report contained in the record:  IR, Inspection Random, 21 February 2013, marijuana (limited use).

3.  Article 15, dated 18 September 2009, for wrongfully using marijuana (090727-090826).  The punishment consisted of reduction to the grade of E-4, forfeiture of $960 per month for two months (suspended), and 45 days of extra duty, (FG). 

4.  One negative counseling statement, dated 8 April 2013, for involuntary separation being initiated.

5.  An MP Blotter, dated 11 April 2013, and an MP Report, dated 3 April 2013, indicates the applicant was the subject of an investigation for wrongful use of marijuana. 

6.  An MP Blotter, dated 23 December 2011, indicates the applicant was the subject of an investigation for being arrested by civil authorities for assault, causing bodily injury. 

7.  A Serious Incident Report, undated, and an MP Report, dated 8 September 2011, indicates the applicant was arrested for driving with a suspended driver’s license and failing to stop at a stop sign.

8.  A CID Report, dated 3 April 2013, indicates the applicant was the subject of an investigation for wrongful use of marijuana.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided DD Form 214 and reenlistment contract for service under current review, and a copy of his separation packet. 

POST-SERVICE ACTIVITY: 

The applicant provided none. 

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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, pattern of misconduct.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" will be assigned an RE Code of 3.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request to change the narrative reason for his discharge, including the corresponding separation authority and both the separation and reentry codes was carefully considered.  However, after examining the applicant’s record of service, his military records, and the documents and issues submitted with the application, there are insufficient mitigating factors to merit any changes to the narrative reason for the applicant's discharge, which includes the separation authority, separation code, and reentry code.  

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 pattern of misconduct, the applicant knowingly risked a military career that ultimately caused his discharge from the Army.  The applicant’s record of service was marred by an Article 15 action for violation of the Uniform Code of Military Justice and several documented incidents of misconduct by both the military and civilian police authorities.

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 the discharge was unjust because his separation packet lacks any evidence of counseling or continued deficiencies after an initial formal counseling session.  Although the applicant’s record contains one counseling statement, an Article 15 action he previously received satisfies the requirement for formal counseling, because it points out the Soldier’s deficiency and involves a formal meeting with the commander to discuss the circumstances of his misconduct.  Accordingly, the command made an assessment of the applicant's potential for becoming a fully satisfactory Soldier, and the evidence contained in the service record establishes the applicant was afforded a reasonable opportunity to overcome noted deficiencies.  As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service.  Furthermore, regarding any further rehabilitative measures, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  

5.  The applicant contends that he is requesting changes to the narrative reason for his discharge and its corresponding authority and codes.  The applicant was discharged under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct with an honorable characterization of service.  The narrative reason specified by Army Regulations in effect at the time for a discharge under this paragraph is "Pattern of Misconduct” and the separation code is "JKA."  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.  

6.  Further, regarding his request to change the reentry code, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  There are no basis upon which to grant a change to the reason or to the RE code.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate.

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

8.  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:  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)		AR20130012891

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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