IN THE CASE OF:	Mr.

      BOARD DATE:	16 August 2014

      CASE NUMBER:	AR20130013154
___________________________________________________________________________

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 upgrade the characterization of his service from general, under honorable conditions to fully honorable, and to change the narrative reason for his discharge.

2.  The applicant states, in effect, he was discharged for a DUI charge that occurred in September 2012; however, the charge was completely dropped in March 2013. There was conflicting view points of what actually occurred that night.  He has evidence that the police officers’ video of the scene was not released for which he assumes the reason his case was dropped.  Furthermore, he has never committed an infraction before or since his discharge.  Because of his dedication to service and progressing in his career, he was selected for Special Forces before the incident.  He maintained focus and discipline even through the discharge.  He believes he deserves an honorable discharge, or at least, his educational and unemployment benefits. 

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	16 July 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	16 May 2013
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200, 
			Paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	B Co, 1st Bn, 66th AR, 1ABCT, 4ID, Fort Carson, CO
	f.	Current Enlistment Date/Term:	11 August 2009, 6 years, 6 months, 7 weeks
	g.	Current Enlistment Service:	3 years, 9 months, 6 days
	h.	Total Service:	3 years, 9 months, 6 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	11B10, Infantryman
	m.	GT Score:	NIF
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Afghanistan (100806-110622)
	q.	Decorations/Awards:	ARCOM; AGCM; NDSM; ACM-2CS; GWOTSM 
			ASR; OSR; NATO MDL; CIB
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 11 August 2009, for a period of 4 years and 16 weeks, and on 23 August 2012, he extended that enlistment to 6 years, 6 months, and 7 weeks.  He was 19 years old at the time of entry and a high school graduate.  He served in Afghanistan.  He earned an ARCOM.  He completed 3 years, 9 months, and 6 days of active duty service.

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 SPC/E-4.

2.  The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c, for misconduct (serious offense), with a characterization of service of general, under honorable conditions.  The DD Form 214 shows a Separation Program Designator (SPD) code of JKQ and a reentry (RE) code of 3.  

3.  The applicant was separated under Orders 129-0012, Installation Management Command, HQS, USAG, Fort Carson, Fort Carson, CO, dated 9 May 2013, with an effective date of 16 May 2013. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There are no counseling statements or UCMJ actions in the record.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an affidavit in support of warrantless arrest, dated 30 September 2012; county court document indicates, on 21 March 2013, a motion to dismiss a case against the applicant was granted because no officer was available on 21 March 2013; two character reference letters, dated 10 June 2013 and 8 June 2013 (without signature); DD Form 214 for service under current review; and congressional documents.

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 "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 an upgrade of the characterization of his discharge and to change the narrative reason for his discharge was carefully considered.  However, after examining the applicant’s record of service, his military records, and the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for his 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 prevails in the discharge process of this case.

3.  The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c by reason of misconduct (serious offense), with a characterization of service of general, under honorable conditions.  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 contention that he was discharged due to driving under the influence (DUI) was carefully considered.  However, it is not possible to determine if his contentions has 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.  Furthermore, even if the basis for his discharge was for the DUI offense described in the Affidavit in Support of Warrantless Arrest by the officer who made the arrest, and the applicant’s contention that the case was dismissed due to conflicting view points of the incident and that the video of the scene was not released, the affidavit does explain that due to the malfunction of the video, the video did not record the incident to the DVD.  Further review of the evidence confirms that the case was dismissed due to the critical witness, the officer, was not available.  

6.  The applicant contends that he believes he deserves an honorable discharge because he never committed an infraction before or since his discharge, and because of his dedication to service and progressing in his career, he was selected for Special Forces and that he maintained focus and discipline even through the discharge.  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 discharge as shown by the serious incident of misconduct.  

7.  The third party statements provided with the application speak highly of the applicant’s performance.  However, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant’s chain of command.  As such, none of the statements provide any evidence sufficiently compelling to overcome the presumption of government regularity.

8.  The applicant requests an upgrade of his discharge in order to allow him educational benefits through the use of the GI Bill.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

9.  Further, the applicant requests upgrade of his discharge in order to help him obtain employment or unemployment benefits.  However, the Board does not grant relief for the purpose of gaining employment and unemployment benefits or enhancing employment opportunities.

10.  The applicant also requests the narrative reason for his discharge 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 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.  

11.  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:  16 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)		AR20130013154

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1