IN THE CASE OF:  	Mr. 

      BOARD DATE:  	12 March 2014

      CASE NUMBER:  	AR20130013312
___________________________________________________________________________

Board Determination and Directed Action

1.  After carefully examining the applicant’s record of service during the period of enlistment under review and the Discussion and Recommendation that follows, the Board determined that the characterization of service was both proper and equitable and voted to deny relief.  

2.  Further, the Board voted to change the applicant’s reason for discharge, authority, separation code, and reentry code on the basis that the board found the narrative reason for separation improper.  The Board directed the DD Form 214 be reissued with the following changes:

a. block 25, separation authority changed to AR 635-200, Chapter 7-16, Sec III
b. block 26, separation code changed to KDS
c. block 27, reentry code changed to 1
d. block 28, narrative reason for separation changed to Defective Enlistment Agreement 

3.  Except for the foregoing modifications, the Board determined that the characterization of service was both proper and equitable, and voted not to change it. 






      
      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 uncharacterized to honorable and a change to the narrative reason for separation and the reentry eligibility (RE) code.

2.  The applicant states, in effect, that he reasonably relied on enlisting in the Army for the option for which he had been accepted into due to the fact he had disclosed all pertinent information and underwent an interview process.  After which, his recruiter informed him of his acceptance and ability to enlist under that option.  The misrepresentation came from his recruiter Sgt H, when he informed him of his acceptance.  The applicant further states that a defective enlistment agreement was entered under 7-16(a) (2).  The rules states a defective enlistment has occurred if “an administrative oversight or error on the part of the recruiting personnel, in which the Soldier did not knowingly take part, in failing to detect that the Soldier did not meet all the requirements for the enlistment commitment.”  Notably, an administrative oversight or error on the part of the recruiter SGT H, and the security interviewer was made when they failed to detect the inadmissibility of entry into Officer Candidate School (OCS).  He was unaware of the error as evident by his emotional reaction to the presentation of the information at Basic Combat Training (BCT).  He believes that he qualifies for a defective enlistment agreement under 7-16(a) 1 and 7-16(a) 2.  He request that his narrative reason be changed to KDS, reentry code to 1 and the characterization of service to honorable.   

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		22 July 2013
b. Discharge received:			Uncharacterized
c. Date of Discharge:			14 July 2010
d. Reason/Authority/SPD/RE:		Entry Level Performance and Conduct, Chapter 11 						AR 635-200, JGA, RE-3
e. Unit of assignment:			Company F, 2nd Battalion, 60th Infantry Regiment,
193rd Infantry Brigade, US Army Basic Combat Training Center of Excellence, Fort Jackson, SC
f. Current Enlistment Date/Term:  	10 May 2010, 3 years
g. Current Enlistment Service:  	0 years, 2 months, 5 days
h. Total Service:			0 years, 2 months, 5 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	None
m. GT Score:				113
n. Education:				College Grad
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		None
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			Records Review/denied/28 September 2012
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army in the grade of E-4/SPC, for a period of 3 years.  He was 25 years old at the time and a college graduate.  He was attending basic combat training at Fort Jackson, SC when his separation was initiated. 

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence of record shows that the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 11, AR 635-200, by reason of entry level performance and conduct; specifically for refusing to train since learning he would not be able to obtain a security clearance required for attendance at the Officers Candidate School (OCS). 

2.  The unit commander recommended the applicant’s separation from the Army with an uncharacterized discharge and advised him of his rights.

3.  On 2 July 2010, the applicant waived legal counsel, was advised of the impact of the discharge action, and did not submit a statement on his own behalf.  The unit commander subsequently recommended the applicant’s discharge and waiver of further rehabilitative efforts.  

4.  On 7 July 2010, the separation authority waived further rehabilitation and directed the applicant’s separation from the Army with an uncharacterized discharge.

5.  The applicant was separated from the Army on 14 July 2010, with an uncharacterized discharge.

6.  There are no UCMJ actions, evidence of time lost, or unauthorized absences in the record.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  Two negative counseling statements dated between 23 June 2010 and 25 June 2010, for displaying a serious lack of motivation for training and was recommended for a Chapter 11 discharge, refusing to train and lack of motivation. 

2.  IET Initial Counseling dated 15 May 2010, which covered the standards of conduct required in basic combat training and other information for his use while assigned to the unit. 

3.  Self authored statement dated 23 June 2010, in which the applicant stated that he was told his security clearance for (OCS) was denied.  He felt that if he received the letter in time he would have been able to clear up one of the issues.  However, he could not clear up the discrepancies in order to continue to (OCS).  After speaking with his wife and family about the situation he refused to train and lacked the motivation to continue forward with basic combat training.  

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided a DD Form 293, dated 8 July 2013, DA Form 3286, Statement for Enlistment/US Army Enlistment Program, US Army Central Personnel Security Clearance Facility memorandum dated 5 February 2010, notifying the applicant of intent to deny his security clearance, applicant’s statement dated 23 June 2010, DA Form 4856 Developmental Counseling Form dated 23 June 2010, and a notification letter of intent to separate the applicant for entry level performance and conduct.

POST-SERVICE ACTIVITY: 

None provided with the application.

REGULATORY AUTHORITY  

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-9 contains guidance on entry level separations.  It states a separation will be described as entry-level with service uncharacterized if, at the time separation action is initiated, the Soldier has less than 180 days of continuous active duty service.

2.  Chapter 11 of Army Regulation 635-200 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry level status (ELS).  An uncharacterized service description is normally granted to Soldiers separating under this chapter.  

3.  An honorable discharge may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.

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 "JGA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 11, for entry level performance and conduct.

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

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge from uncharacterized to honorable; a change to the narrative reason for separation and the RE code was carefully considered.  However, after examining the applicant’s record of service, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the uncharacterized description of service accurately reflects the applicant’s overall record of service.  An uncharacterized discharge is neither positive nor negative and it is not meant to be a negative reflection of a Soldier’s military service.  It merely means the Soldier has not been in the Army long enough for the character of service to be rated as honorable or otherwise.  

3.  The separation authority approved the applicant's discharge as entry-level status, with the description of service as uncharacterized.  Army Regulation 635-200 provides in pertinent part, that a Soldier is in entry-level status for the first 180 days of continuous active duty.  The purpose of the entry-level status is to provide the Soldier a probationary period.  Soldiers who are found to lack the necessary motivation, adaptability, self-discipline, ability, or attitude to become productive Soldiers may be expeditiously separated while in entry-level status.  The Regulation also provides, except in cases of serious misconduct, that a Soldier’s service will be uncharacterized when the separation is initiated while the Soldier is in entry level status.  

4.  The applicant requests an upgrade of his discharge to honorable.  However, an honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct or performance of duty.  The applicant’s service record indicates no such unusual circumstances were present and did not warrant an honorable characterization.  

5.  The applicant requests a change to the narrative reason for separation.  The applicant contends the misrepresentation came from his recruiter SGT H, when he informed him of his acceptance.  The applicant further states that a defective enlistment agreement was entered under 7-16(a) (2).  

6.  After a careful review of the applicant’s request, his military records, the issue and legal opinion as to the administrative error in his DD Form 214, the service record reflects that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 25, separation authority as AR 635-200, Chapter 11, block 26 separation code as "JGA," an reentry eligibility (RE) code 3, and block 28, narrative reason for separation as “Entry Level Performance and Conduct.”  

7.  In view of the foregoing, the narrative reason for separation appears to be improper and recommend the Board grant partial relief and change the narrative reason for separation to the following:  

a. block 25, separation authority to AR 635-200, Chapter 7-16, Sec III
b. block 26, separation code to KDS
c. block 27, reentry code to 1
d. block 28, reason for separation to Defective Enlistment Agreement   

8.  Except for the foregoing modifications to the applicant's narrative reason for separation as stated above, the characterizations of the applicant’s discharge was both proper and equitable, and recommend the Board deny relief. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance    Date: 12 March 2014    Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel:  None

Witnesses/Observers:  None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted no additional documents or contentions.

2.  In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

Board Vote:
Character  	Change:  0	No Change:  5
Reason	Change:  5	No Change:  0
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	No Change
Change Reason to:			Defective Enlistment Agreement
Change RE Code to:		1
Grade Restoration to:		NA
Change Authority for Separation:	AR 635-200, Chapter 7, Paragraph 7-16, Sec III
Other:					Separation Program Designator (SPD) code KDS

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)		AR 20130013312		

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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