IN THE CASE OF:	Mr. 

      BOARD DATE:	9 May 2014

      CASE NUMBER:	AR20130013804
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review and considering the analyst’s 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 received two Article 15 actions and a summary court- martial.  The latter two legal proceedings occurred following an injury.  He was promoted to E-3 on 19 February 2009.  He received the first Company Grade Article 15 on 31 March 2009, following his promotion and was reduced by two grades, down to E-1, which is not in accordance with the regulation.  The second Article 15 was on 1 January 2010, which listed his rank incorrectly as E-1.  The Summary Court-Martial initiated on 14 October 2010, also listed his rank as E-1 incorrectly.  He was subsequently convicted and sentenced to confinement on 6 January 2011.  His written request appealing the battalion commander’s decision was denied within 10 minutes.  Following his release from confinement in February 2011, he was recommended for an administrative separation.  At the time of the recommendation, he was undergoing a medical review board.  Both reports were submitted to the CG of Fort Bragg, who chose the administrative separation.  All his separation documents listed his rank as E1 incorrectly.  He has attached all relevant documents. 

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	29 July 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	4 May 2011
	d.	Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, paragraph 14-
			12b, JKA, RE-3
	e.	Unit of assignment:	HHB, 3rd Bn (Airborne), 4th ADA Regiment, 108th 
			ADA Bde, Fort Bragg, NC
	f.	Current Enlistment Date/Term:	24 September 2008, 3 years, 11 weeks
	g.	Current Enlistment Service:	2 years, 7 months, 11 days
	h.	Total Service:	5 years, 09 month, 29 days
	i.	Time Lost:	26 days
	j.	Previous Discharges:	USAR (050610-050713) / NA
			IADT   (050713-060217) / HD
			USAR (060218-080923) / NA
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	92G10, Food Service Operation Specialist
	m.	GT Score:	94
	n.	Education:	GED
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	NDSM; GWOTSM; ASR
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No  

SUMMARY OF SERVICE:  

The applicant, who previously served in the Army Reserve, enlisted in the Regular Army on 24 September 2008, for a period of 3 years and 11 weeks.  He was 22 years old at the time of entry and had a high school equivalency (GED).  He was trained in and awarded military occupational specialty (MOS) 92G10, Food Service Operation Specialist.  His record documents no acts of valor or significant achievement.  He completed 5 years, 9 months, and 29 days of active duty and reserve service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 10 February 2011, 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 receiving two Article 15 actions, having been found guilty at a summary court-martial, and having multiple negative counseling statements.

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.

3.  On 15 February 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and elected to submit a statement on his own behalf.  However, on 1 March 2011, the applicant acknowledged he failed to submit matters 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.  On 8 April 2011, the GCMCA determined the applicant’s medical condition was not the direct or substantial cause of the misconduct that led to the recommendation for his administrative separation and that it did not warrant disability processing, and waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The applicant was discharged from the Army on 4 May 2011, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, a Separation Program Designator code (SPD) of JKA and an RE code of 3. 

6.  The applicant's record shows 6 days of time lost due to military confinement as a result of a summary court-martial sentence.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Confinement Order, dated 6 January 2011, indicates it was the result of the applicant being convicted by a summary court-martial for failing to be at his appointed place of duty at the prescribed time on three occasions, failing to obey an order, and making a false official statement, and receiving a sentence of forfeiture of $964 and 30-day confinement, the applicant was placed in confinement on 6 January 2011.

2.  Article 15, dated 20 January 2010, for violating a general regulation by wrongfully having a stun gun in his personal vehicle while on Fort Bragg (091205).  The punishment consisted of forfeiture of $326 (suspended), 14 days of extra duty, oral reprimand, (CG).  

3.  Record of Supplementary Action under Article 15, UCMJ, dated 4 April 2009, indicates the suspended punishments of reduction to E-1 and forfeiture of $325 imposed on 31 March 2009, were vacated based on the applicant showing up late to formations, extra duty, and work call.  

4.  Article 15, dated 31 March 2009, for failing to go to his appointed place of duty at the prescribed time on four occasions (090115, 090206, 090303, and 090308).  The punishment consisted of reduction to the grade of E-1 (suspended), forfeiture of $326 (suspended), 14 days of extra duty, (CG). 

5.  Seven negative counseling statements, dated between 14 April 2010 and 18 August 2010, for failing to shave prior to reporting for work; failing to use proper chain of command; failing to bring and attend TA-50 and Class A inspections; failing to be at his appointed place of duty at the prescribed time; failing to sign in at staff duty as directed; disobeying an order; and falsifying an official document.

6.  Medical packet consisting of a VA/DOD Joint Disability Evaluation Board Claim, medical examination reports, and Medical Evaluation Board report.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided with his online application, DD Form 2586, verification of military experience and training, dated 1 April 2013; CG Article 15, dated 31 March 2009; Record of Supplementary Action Under Article 15, UCMJ, dated 4 April 2009; CG Article 15, dated 20 January 2010; preferred and referred Charge Sheet, dated 14 October 2010; confinement order, dated 6 January 2010; two ERBs; three LESs for January 2009, March 2009, and October 2010; and the applicant’s separation packet.

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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12b, 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.

ANALYST’S 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, the documents and 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 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 of his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by three Article 15 actions, a summary court-martial conviction, and negative counseling statements 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’s primary contentions are related to being addressed at the rank/grade of PV1/E-1, during his Article 15, summary court-martial, and separation proceedings.  However, throughout each proceeding, he appropriately signed several documents that addressed him as E-1.  There is no evidence to indicate his promotion to E-2 following the latter Article 15 proceedings or his confinement as adjudged by a summary court-martial.  Moreover, Article 58a, UCMJ, stipulates in pertinent part, that a court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority that includes confinement, reduces that member to pay grade E-1, effective on the date of that approval.  Even if he was correct that at a certain point after his reduction to E-1 that he regained his E-2 grade and notwithstanding any error, it appears that the rights of the applicant were not prejudiced by any alleged error on file in this case.  Department of Defense Directive 1332.28 stipulates that a discharge is proper unless the error was prejudicial in nature.  The applicant had a record of misconduct and substandard performance of duty with few significant favorable entries in the service record.  Although there is no evidence to confirm his contentions, such alleged error did not create a substantial doubt that the discharge would have been any different if the error had not been made.  

5.  The applicant contends that two legal proceedings under the UCMJ occurred following an injury, perhaps indicating that medical issues may have contributed to his discharge from the Army.  However, the service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition.  Further, he contends that at the time of his involuntary separation recommendation, he was undergoing a medical review board, but that the commanding general chose to administratively separate him, perhaps indicating that he should have been medically discharged; however, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  In the applicant’s case, such acts of misconduct were documented by the Article 15 and summary-court martial proceedings.

6.  The applicant contends that when he submitted his written appeal to the battalion commander’s during his summary court-martial decision, it was denied within 10 minutes.  However, if this is the rationale the applicant provided as the basis for what he believes was an unfair discharge, it is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.

7.  Regarding the applicant’s request to change the narrative reason for his discharge, he was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this 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.  

8.  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.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

9.  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:  9 May 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)		AR20130013804

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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