IN THE CASE OF: Mr.
BOARD DATE: 23 April 2014
CASE NUMBER: AR20130013539
___________________________________________________________________________
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 APPLICANTS 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 not made fully aware of the reasons for his discharge or the disciplinary actions taken against himhe was not made aware of any other issues as reasons for his discharge from the unit at the time. He would like to have it reviewed to determine how the coding for his release from the unit and service were decided. His discharge has determined that he receives no veterans benefits for education and as of yet, he has not seen or verified other benefits being denied as well. He should be given full use of his benefits up to the time he served. If there is no reason for his discharge, it should not be any less than an honorable conditions discharge.
DISCHARGE UNDER REVIEW INFORMATION:
a. Application Receipt Date: 23 July 2013
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 19 August 2000
d. Reason/Authority/SPD/RE Code: Misconduct, AR 635-200, Paragraph 14-12b, JKA,
RE-3
e. Unit of assignment: Co A, 94th Engineer Combat Bn, 282nd Base
Support Bn, Hohenfels, Germany
f. Current Enlistment Date/Term: 23 September 1998, 4 years
g. Current Enlistment Service: 1 year, 10 months, 27 days
h. Total Service: 1 year, 10 months, 27 days
i. Time Lost: None
j. Previous Discharges: None
k. Highest Grade Achieved: E-2
l. Military Occupational Specialty: 62J10, General Construction Equipment Operator
m. GT Score: 93
n. Education: HS Graduate
o. Overseas Service: Germany
p. Combat Service: Kosovo (990705-991105)
q. Decorations/Awards: KCM-BSS; ASR; NATO MDL
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 16 September 1998, for a period of 4 years. He was 18 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 62J10, General Construction Equipment Operator. He served in Germany and Kosovo. His record documents no acts of valor or significant achievement. He completed 1 year, 10 months, and 27 days of active duty service.
SEPARATION FACTS AND CIRCUMSTANCES:
1. The evidence contained in the applicants service record indicates that on 8 August 2000, 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 a pattern of misconduct, specifically for the following offenses:
a. failing to be at his appointed place of duty at the prescribed time (FTRs);
b. numerous derelictions of duty;
c. failing to obey lawful written orders;
d. willfully disobeying noncommissioned officers; and
e. writing numerous bad checks.
2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. On 8 August 2000, the applicant acknowledged receipt of the memorandum of notification and a copy of all documents contained in the separation packet.
3. On 14 August 2000, the applicant consulted with legal counsel, was advised of the impact of the discharge action and although he was not eligible for an administrative separation board, he requested for a conditional waiver contingent upon him receiving no less favorable than a general, under honorable conditions characterization of service. He did not submit statement on his own 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 a general, under honorable conditions discharge.
4. The separation authoritys decision memorandum is not available in the record. However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicants signature.
5. The DD Form 214 indicates that on 19 August 2000, the applicant was discharged under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for misconduct with a characterization of service of general, under honorable conditions as approved by the separation authority. Further, the DD Form 214 shows a Separation Code of JKA (i.e., pattern of misconduct) with a reentry eligibility (RE) code of 3.
6. The applicants service record does not contain any evidence of unauthorized absences or time lost.
EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:
1. Article 15, dated 7 September 1999, for dereliction of duty, by failing to properly secure sensitive items (990822). The punishment consisted of reduction to the grade of E-1 (suspended), forfeiture of $223, 14 days of extra duty, and 7 days of restriction, (CG).
2. Supplementary Action under Article 15, dated 20 October 1999, vacation of suspended punishment of reduction to E-1 imposed on 7 September 1999, for dereliction of duty by failing to properly secure sensitive items (990925).
3. Article 15, dated 12 August 1999, for dereliction of duty by failing to maintain accountability of his weapon (990809). The punishment consisted of 14 days of extra duty and oral reprimand, (summarized CG).
4. Article 15, dated 31 July 1999, for dereliction of duty by failing to maintain accountability of his weapon (990726). The punishment consisted of 2 days of extra duty and oral reprimand, (summarized CG).
5. Fifteen negative counseling statements, dated between 3 March 1999 and 24 May 2000, for failing to obey an order to clean TA-50; lacking motivation; not knowledgeable of his basic Soldier skills; needing work with his APFT; not being at his appointed place of duty at the prescribed time; missing alert formation; writing bad checks; failing to maintain accountability of his weapon and ammunition; failing both the APFT and USAREUR drivers license exam; living area being below standards; failing to obey orders; failing to be prepared for 4-mile road march; failing to follow orders; unsatisfactory performance; and failing to clean his personal equipment.
6. Bar to Reenlistment Certificate, dated 3 September 1999, indicates the applicant acknowledged being counseled and advised of the basis for the bar, and elected not to submit matters on his own behalf.
7. Three AAFES letters notifying the applicants commander, dated 24 January 2000 and 24 February 2000, for dishonored checks written by the applicant.
EVIDENCE SUBMITTED BY THE APPLICANT:
The applicant provided none.
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 members 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 Soldiers 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 applicants 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 applicants record of service, his military records, and the issues 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 record confirms that the applicants 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 of his service below that meriting a fully honorable discharge. The applicants record of service was marred by four Article 15 actions for multiple violations of the Uniform Code of Military Justice and numerous negative counseling statements.
3. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicants service mitigated the misconduct or poor duty performance.
4. The applicant contends he was not made fully aware of his discharge or the disciplinary actions against him. However, the evidence of record shows the applicant was properly notified of the reasons for a separation action being initiated and was advised of his rights, which he acknowledged and further received legal counsel; wherein, he personally made an election of his rights during his discharge proceedings. Moreover, the evidence further shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of several non-judicial punishments. The applicant failed to respond appropriately to these efforts. Subsequently, the command made an assessment of the applicant's potential for becoming a fully satisfactory Soldier. Accordingly, 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 and initiated actions to involuntarily separate him from service. Moreover, the rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.
5. The applicant contends his discharge has determined that he receives no veterans benefits for education or any other benefits, perhaps including 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. Further, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.
6. The applicant requests to change the narrative reason for his discharge. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general, under honorable conditions discharge. Although, the separation authoritys decision memorandum is not available in the records, the Transition Center (TC) appropriately selected the reason for the discharge, the SPD code and reentry code to execute the commander's intent. Army Regulation 635-5-1 provides the authority for Transition Centers (TC) throughout the Army to execute the commanders intent and in this case the TC selected the appropriate reentry code, the SPD Code that identified the type of separation and the correct paragraph from AR 635-200 that corresponded with the reason for the applicants separation as described in the discharge packet, and as approved by the separation authority. The narrative reason specified by Army Regulations for a discharge under the aforementioned 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 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.
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 character of the applicants discharge is commensurate with his overall service record. Accordingly, 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: 23 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) AR20130013539
Page 7 of 7 pages
ARMY DISCHARGE REVIEW BOARD (ADRB)
CASE REPORT AND DIRECTIVE
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