IN THE CASE OF:  	Mr. 

      BOARD DATE:  	24 February 2014

      CASE NUMBER:  	AR20130013331
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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 that his discharge be upgraded to honorable and a change to the narrative reason for discharge.

2.  The applicant states, in effect, his discharge was based on receiving two Company Grade (CG) Articles 15.  While both were for minor misconduct, the second was the one that started his separation process.  It was for being late on multiple occasions and during the time when his company's barracks building was experiencing multiple power outages.  Also, during the few months the Article 15 occurred, three other Soldiers were discharged for drug related issues and everyone in our unit seemed to have a bad name because of it.  The new commander, CPT C told the unit several times that he was “cleaning house.”  Although his offenses were minor, he was put in the same category as the others who had much more serious offenses.  He also asked if he could ETS since his contract was about to expire.  That request wasn't granted even though he pointed out that with terminal leave he would have been out of the unit in 74 days.  He lost his GI Bill because of this and has had trouble over the years with getting jobs and receiving promotions.  He has talked to many Veterans over the years and has not found any with the type of discharge he received.  He has met two who received an honorable discharge after being separated because of multiple DUIs.  He committed no crime and only wish to have his discharge equitably reflect his time in service compared to his fellow Soldiers.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		19 July 2013
b. Discharge Received:		General, Under Honorable Conditions	
c. Date of Discharge:			4 February 2003 
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, Chapter 14-12a, JKN, RE-3
e. Unit of assignment:			A Detachment, 55th Personnel Service Battalion 						APO AE 09165 
f. Current Enlistment Date/Term:	17 June 1999, for 4 years 	
g. Current Enlistment Service:	3 years, 7 months, 18 days
h. Total Service:			3 years, 7 months, 18 days
i. Time Lost:				None
j. Previous Discharges:		None	
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	75H10, Personnel Specialist
m. GT Score:				122
n. Education:				HS Graduate
o. Overseas Service:			Germany
p. Combat Service:			None
q. Decorations/Awards:		NDSM, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None	
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 17 June 1999, for a period of four years.  He was 18 years old at the time of entry and a high school graduate.  He served 3 years, 7 months and 18 days of active military service.  At the time the discharge proceedings were initiated he was serving Germany.  His record does not show any special awards or meritorious achievements.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  The record shows that on 26 December 2002, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12a, AR 635-200, by reason of misconduct for minor disciplinary infractions, specifically for receiving two CG Article 15s for failing to be at his appointed place of duty and disrespect to a commissioned officer.  After numerous counseling, the applicant made no attempt to rehabilitate.  He was recommended for an honorable discharge and was advised of his rights.  

2.  On 7 January 2003, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement on his behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commander recommended approval of the separation with a general, under honorable conditions discharge.  

3.  The separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

4.  The applicant was separated on 4 February 2003, under Army Regulation 635-200, Chapter 14-12a (Misconduct), with a general, under honorable conditions discharge, an SPD code of JKN and an RE code of 3.

5.  The applicant’s record does not show any record of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  Numerous negative counseling statements, dated between 13 March 2001 and 26 December 2002, for failing to report to his place of duty on several occasions, being late for formations, disrespect to an NCO, not being in the proper uniform, corrective training, misuse of a government vehicle, disobeying orders, leaving his place of duty, missing flag detail, insubordination towards a warrant officer, NCO or petty officer, and notification of intent to separate. 

2.  A CG Article 15, dated 20 September 2001, for failing to go to his appointed place of duty at the appointed time x 2 (010713 and 010716).  His punishment consisted of reduction to the grade of E-2, forfeiture of pay in the amount of $200.00 pay for one month (suspended), and 14 days of extra duty and restriction.
3.  A CG Article 15, dated 15 April 2002, for disobeying a lawful order not to use the Company TMP on or about 23 January 2002. The punishment imposed consisted of reduction to E-1, forfeiture of $257.00 and extra duty for three days.

4.  DA Form 4187, dated 27 February 2002, indicates the applicant requested a rehabilitative transfer.

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided an online DD Form 293, DD Form 214, copy of AMHRR documents, and six 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 "JKN" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14-12a, for minor disciplinary infractions.
5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKN" will be assigned an RE Code of 3.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade to the characterization of his discharge and change to the narrative reason 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 an upgrade or change to the narrative reason for the discharge.    

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 diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by two Articles 15 for multiple violations of the Uniform Code of Military Justice.

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 event that caused his discharge from the Army were minor incidents.  Although minor incidents, the discrediting entries constituted a departure from the standards of conduct expected of Soldiers in the Army.  Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by minor incidents provides the basis for a characterization.  

5.  The applicant contends the new commander told the unit several times that he was “cleaning house.”  He was lumped in with others who had much more serious offenses even though his was unrelated.  The applicant’s contentions were noted; however, 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.  Furthermore, before initiating discharge proceedings, the command ensured the applicant was appropriately counseled about his deficiencies which could lead to separation.  The command made an assessment of the applicant's potential for becoming a fully satisfactory Soldier.  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.

7.  The applicant contends he was not given a chance for a rehabilitative transfer.  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.  

8.  The applicant contends he talked to many Veterans over the years and has not found any with the type of discharge he received for such minor issues.  He has met two who received an honorable discharge after being separated because of multiple DUIs.  He committed no crime and only wishes to have his discharge equitably reflect his time in service compared to his fellow Soldiers.  The method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.

9.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding 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 repeated incidents of misconduct or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice

10.  The applicant contends that he is requesting an upgrade in the form of a narrative reason change.  The narrative reason specified by Army Regulations in effect at the time for a discharge under this paragraph is "Misconduct” and the separation code is "JKN."  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.  

11.  The applicant desires to use the benefits of the GI Bill for educational purposes and to have better job opportunities.  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.  In addition, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities

12.  The third party statements provided with the application talk about some of the incidents that led to some of the applicant’s counseling statements and his conduct/good deeds since being discharged.  However, none of these individuals were in a position to fully understand or appreciate the expectations of the applicant’s chain of command.  As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of regularity.

13.  The records show the proper discharge and separation authority procedures were followed in this case.
14.  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: Personal Appearance    Date:  24 February 2014    Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel: Yes [redacted]

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 testimony presented by the applicant at the personal appearance hearing.

Board Vote:
Character  	Change:  2		No Change:  3
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)		AR20130013331



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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