IN THE CASE OF:  	Mr. 

      BOARD DATE:  	24 February 2014

      CASE NUMBER:  	AR20130013673
___________________________________________________________________________

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.  Counsel, on behalf of the applicant, requests the applicant’s discharge be upgraded to honorable and a change to the narrative reason for discharge to completion of required active services.

2.  Counsel states, in effect, the Army did not comply with AR 635-200, Chapter 1 in attempting to rehabilitate the applicant nor was he given sufficient time to overcome his deficiencies and it was inequitable for the Army to separate the applicant just before his active duty service obligation.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		5 August 2013
b. Discharge Received:		General, Under Honorable Conditions	
c. Date of Discharge:			16 April 2005 
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14-12b, 						JKN, RE-3
e. Unit of assignment:			B Battery, 1-258 Field Artillery, 720th Military Police 						Battalion, 42nd Military Police Brigade, APO AE 						09390
f. Current Enlistment Date/Term:	OAD 20 January 2004, 545 days 	
g. Current Enlistment Service:	1 years, 2 months, 27 days
h. Total Service:			3 years, 6 months, 4 days
i. Time Lost:				None
j. Previous Discharges:		ARNG (011012-030407), NA									IADT (030408-030821), UNC									ARNG (030822-040119), NA				
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	92G10, Food Service Specialist
m. GT Score:				NIF
n. Education:				10th Grade
o. Overseas Service:			SWA
p. Combat Service:			Iraq (040406-050310)
q. Decorations/Awards:		NDSM, GWOTEM, GWOTSM, AFRM-w/M-DEV-1, 						ARCAM-1, 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 ARNG on 12 October 2001, for a period of 6 years.  He was 18 years old at the time of entry and completed the 10th grade.  He attended basic training from 8 April 2003 to 21 August 2003.  On 20 January 2004, he was ordered to active duty for a period not to exceed 545 days in support of Operation Iraqi Freedom.  At the time the discharge proceedings were initiated he was serving in Iraq.  He served for 3 years, 7 months and 18 days of ARNG and active military service.  His record does not show any special awards or meritorious achievements.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  The applicant’s record is void of the case separation documents; however, counsel provided a copy of the complete separation packet.  The record shows 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 for:

	a.  Repeatedly demonstrating insubordinate conduct toward non-commissioned officers
	
	b.  Failing on numerous occasions to obey lawful orders and regulations
	
	c.  Continuously being derelict in the performance of his duties
	
	d.  Being found drunk on duty
	
	e.  Receiving UCMJ punishment twice within three months and 
	
	f.  Refusing to conform to military standards 

2.  The applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement on his behalf (NIF).  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.  On 3 February 2005, 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 16 April 2005, under Army Regulation 635-200, Chapter 14-12b (Pattern of 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.  Two illegible CG Articles 15.  In the Disciplinary Action Report, dated 7 December 2004, it states the applicant received two Articles 15 within three months.  The applicant was reduced from E-4 to E-2 and was caught the same night drunk on duty and was further reduced from 
E-2 to E-1. 

2.  One counseling statement, dated 6 January 2005, for violating restriction, failing to obey instructions, and disobeying a lawful order. 

EVIDENCE SUBMITTED BY THE APPLICANT 

Counsel provided an online DD Form 293, two DD Forms 214, enlistment documents, orders for active duty, two illegible Articles 15, two developmental counseling, commander’s request for mental Evaluation, notification of separation, acknowledgement of separation rights, separation endorsements of chain of command, DD Form 215, Medal of Merit, Medal for Humane Services Certificate, Academic Evaluation, orders for MOS change, Academic Evaluations for Warrior Leader Course, and 88M Motor Transport Operator Course.  

POST-SERVICE ACTIVITY: 

Counsel contends the applicant returned to the NYARNG after his discharge from active duty,  changed his MOS, volunteered to assist with Hurricane Katrina, and successfully completed the Warrior Leader Course.

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 14-12b, 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.  Counsel’s request for an upgrade of the characterization of service and the reason for the applicant’s discharge were carefully considered.  However, after examining his military records, hearing his testimony, and considering the issues submitted with the application, there are insufficient factors to merit an upgrade of the applicant's discharge and a change to the narrative reason.  

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 an 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.  Counsel 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.  Counsel states, in effect, the Army did not comply with AR 635-200, Chapter 1, in attempting to rehabilitate the applicant or giving him sufficient time to overcome his deficiencies and it was inequitable for the Army to separate the applicant just before his active duty service obligation.  However, 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.  As noted in the commander’s notification letter, 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.

6.  Counsel contends since the applicant’s discharge from active duty, he returned to NYARNG, changed his MOS, volunteered to assist with Hurricane Katrina, and successfully completed the Warrior Leader Course.  The applicant’s post-service accomplishments have been noted as outlined on the application and in the documents with the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, these accomplishments did not overcome the reason for discharge and characterization of service granted.  Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  

7.  Counsel contends it was inequitable for the Army to separate the applicant just before his active duty service obligation ended.  There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, and the applicant has not produced any evidence, to support the contention that his discharge was inequitable.  In fact, the applicant’s two Articles 15 and the conduct noted in the commander’s notification memorandum justify a pattern of misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.   

8.  Counsel contends the applicant 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.  

9.  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. 

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

11.  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:  Personal Appearance	  Date:  24 February 2014   Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel: Mr. Greg T Rinckey, Tully Rinckey, PLLC, 441 New Karner Road, Albany, NY 12205

Witnesses/Observers: Yes - Wife

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE

1.  The applicant submitted the following additional documents:

	a.  Counseling Statement – 2 pages
	b.  College Transcripts – 2 pages
	c.  NYPD Disqualification – 1 page
	d.  Employee of the month – 2 pages
	e.  Certificates (USA) – 4 pages

2.  The applicant presented no additional contentions.

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:  	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 RE Code to:		NA
Grade Restoration to:		NA
Change Authority for Separation:	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)		AR20130013673



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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