IN THE CASE OF:  	Mr. 

      BOARD DATE:  	10 March 2014

      CASE NUMBER:  	AR20130014144
___________________________________________________________________________

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.  However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, block 27, contains the erroneous re-entry code of 4.  The Board directed an administrative correction to block 27 to read RE-3, as required by Army Regulations.

      
      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 under other than honorable conditions discharge to general, under honorable conditions.

2.  The applicant states, in effect, it has been over ten years since he was discharged and he was told he would be able to have his characterization changed to a general, under honorable conditions discharge after ten years.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			1 August 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				16 May 2001
d. Reason/Authority/SPD/RE Code:		Misconduct, AR 635-200, Chapter 14-12c, 
JKQ, RE-4
e. Unit of assignment:				CS BN, TMT Co, MSB, Fort Drum, NY
f. Current Enlistment Date/Term:		14 July 2000/6 years
g. Current Enlistment Service:		10 months, 3 days
h. Total Service:				17 years, 2 months, 3 days
i. Time Lost:					None
j. Previous Discharges:			RA/960625-980624/HD
RA/980625-000713/HD
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		88M10, Motor Transport Operator
12B10, Combat Engineer
m. GT Score:					93
n. Education:					GED
o. Overseas Service:				NIF
p. Combat Service:				NIF
q. Decorations/Awards:			AAM-2, AGCM, ARCAM-3, NDSM, AFRM, 
NOPDR, ASR, ARCOT
r. Administrative Separation Board: 		NIF
s. Performance Ratings:			Yes
t. Counseling Statements:			NIF
u. Prior Board Review:				Yes/3 October 2008
SUMMARY OF SERVICE:		
	
The applicant reenlisted in the Regular Army on 14 July 2000 for a period of 6 years.  He was 35 years old at the time of reenlistment and had a General Equivalency Diploma (GED).  He earned two AAMs and completed 17 years, 2 months, and 3 days of total military service.  When his discharge proceedings were initiated, he was serving at Fort Drum, New York.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature.  

2.  The DD Form 214 indicates that on 16 May 2001, the applicant was discharged under the provisions of Chapter 14, AR 635-200, for misconduct, with a characterization of service of under other than honorable conditions.  The DD Form 214 also shows a Separation Program Designator (SPD) code of JKQ and a reentry (RE) code of 4.  

3.  The applicant’s available record does not show any recorded actions under the UCMJ, unauthorized absences or time lost.  However, he was separated as a PVT/E-1 and the action that caused his reduction is not contained in the service record.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Two NCOERS covering the period of January 2000 through May 2001.  The applicant was rated as as “Fully Capable” and “Marginal” by his raters.  He received a “3/3” and “5/5” for “Overall Performance/Overall Potential” by his senior raters (SRs).  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application dated 29 July 2013, and a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant did not provide any in support of his application.

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.

DISCUSSION AND RECOMMENDATION:

1. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  However, after examining the applicant’s 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.  

2.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  However, the record contains a properly constituted DD Form 214, which was authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process.  

3.  Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  However, the service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4.  The applicant’s DD 214 indicates he was separated under the provisions of Chapter 14-12c, AR 635-200, by reason of misconduct (serious offense).  AR 635-5-1, (Separation Program Designator Codes) and Cross Reference Table shows that a Soldier processed for misconduct (serious offense) will be assigned an SPD Code of JKQ and an RE Code of 3.  

5.  The applicant’s issue about an upgrade based on the time that has elapsed since the discharge was carefully considered.  However, the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits a DD Form 293 requesting a change in discharge.  Changes may be warranted if the Board determines the characterization of service or the reasons for discharge, or both, were improper or inequitable.  There is insufficient evidence available in the official record to make a determination upon the applicant's quality of service.  Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted.  The applicant’s statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge.  
6.  It is the applicant’s responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record.

7.  In view of the foregoing and notwithstanding the propriety of the discharge, recommend the Board change block 27, reentry code to 3, as approved by the separation authority.  Therefore, based on the available evidence and the government presumption of regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance     Date:  10 March 2014      Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel:  None

Witnesses/Observers: No

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  Approx 75 DA Forms 3982, medical appointments – 75 sheets
	b.  Military counseling forms DA Forms 4856 – 7 pages
	c.  Certificates and work citations – 9 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:  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:		Yes
Change Characterization to:	No Change
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		3
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)		AR20130014144



Page 5 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1