IN THE CASE OF:	Mr. 

      BOARD DATE:	28 March 2014

      CASE NUMBER:	AR20130014353
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation that follows, the Board determined the discharge is now inequitable.  The Board found the circumstances surrounding his discharge, a single minor infraction, did not warrant the discharge.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the narrative reason for separation to Secretarial Authority.  This action entails a change to the reentry eligibility (RE) code to 1.


      
      
      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 change the narrative reason and reentry code for his discharge.

2.  The applicant’s counsel-authored statement, in pertinent part and in effect, states to note the applicant’s extraordinarily high ASVAB scores across the entire spectrum of testing.  The applicant had no history of misconduct of any kind and successfully completed the basic training requirements.  The counsel detailed the circumstances and events surrounding the applicant’s joking comment regarding a fellow recruit, PVT S, and a blanket party, but absolutely took no steps to affect a blanket party or any attempts by others to give PVT S a blanket party.  There was no Article 15-6 investigation.  However, a drill sergeant issued the applicant a counseling statement, although the applicant disagreed, stating he was never serious about the comment.  The company commander’s statement that the applicant was going to give PVT S a blanket party was simply not true, but recommended to separate the applicant.  Notwithstanding the lower command’s nonconcurring with the separation and the regulatory provisions to recycle the applicant, and the abject lack of evidence of intentional wrongdoing, the applicant was separated for minor disciplinary infractions.  Accordingly, the Army has lost a good young man for no good reason and relief should be granted.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	31 July 2013
	b.	Discharge Received:	Uncharacterized
	c.	Date of Discharge:	1 May 2012
	d.	Reason/Authority/SPD/RE Code:	Entry Level Performance and Conduct, AR 635-200, 
			Chapter 11, JGA, RE-3
	e.	Unit of assignment:	Co B, 2nd Bn, 13th IN Rgmt, 193rd IN Bde, US Army 
			Training Center and Fort Jackson, Fort Jackson, SC
	f.	Current Enlistment Date/Term:	16 January 2012, IADT
	g.	Current Enlistment Service:	0 years, 3 months, 16 days
	h.	Total Service:	0 years, 8 months, 3 days
	i.	Time Lost:	None
	j.	Previous Discharges:	ARNG (110830-120115) / NA 
	k.	Highest Grade Achieved:	E-1
	l.	Military Occupational Specialty:	None
	m.	GT Score:	116
	n.	Education:	HS Graduate
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	None
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF, but available in applicant’s submitted evidence
	u.	Prior Board Review:	No



SUMMARY OF SERVICE:  

The applicant enlisted in the Army National Guard on 30 August 2011, for a period of 8 years, and for the service under current review, he reported to active duty training on 16 January 2012.  The records indicate he received an uncharacterized discharged from the ARNG on 2 May 2012.  He was 19 years old at the time of entry and a high school graduate.  His record documents no acts of valor or significant achievement.  He completed 8 months and 3 days of creditable federal service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 29 March 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 11, AR 635-200, by reason of entry level performance and conduct for being unable to meet the minimum standards for successful completion of basic combat training due to minor disciplinary infractions. 

2.  The unit commander recommended the applicant’s separation from the Army with an uncharacterized discharge and advised the applicant of his rights.

3.  On 29 March 2012, the applicant waived his right to consult with legal counsel, indicated he understood the impact of the discharge action, and elected to submit a statement on his behalf.  The unit commander subsequently recommended the applicant’s discharge and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval with an uncharacterized discharge

4.  On 18 April 2012, the separation authority waived further rehabilitation and directed the applicant’s separation from the Army with an uncharacterized discharge.

5.  The applicant was separated from the Army on 1 May 2012, with an uncharacterized discharge  

6.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There are no counseling statements or UCMJ actions in the record.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided DD Form 214 for service under current review; NGB Form 22, dated 2 May 2012, with orders, dated 11 May 2012; ABCMR letter, dated 19 March 2013; orders for IADT for AIT, dated 14 December 2011; ARNG enlistment contract; ARNG congratulations letter for enlistment training; ARNG Applicant Data Report, dated 30 August 2011; memorandum, dated 30 March 2012, subject: Commander’s Report – Proposed Separation Under AR 635-200, Chapter 11, Entry Level Performance and Conduct [the applicant]; ERB, dated 27 March 2012; individual training record for BCT, dated 21 March 2012; Applicant’s (Soldier’s) Statement, dated 12 March 2012; counseling statement, dated 12 March 2012; counseling statement, dated 15 March 2012; and five memoranda regarding the applicant’s separation proceedings, decision, and election of rights. 

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.  Paragraph 3-9 contains guidance on entry level separations.  It states a separation will be described as entry-level with service uncharacterized if, at the time separation action is initiated, the Soldier has less than 180 days of continuous active duty service.

2.  Chapter 11 of Army Regulation 635-200 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry level status (ELS).  An uncharacterized service description is normally granted to Soldiers separating under this chapter. 

3.  A general discharge (GD) under honorable conditions discharge is not authorized under ELS conditions and an honorable discharge (HD) is rarely ever granted.  An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for changes to the narrative reason and reentry code of his discharge was carefully considered.  However, after examining the applicant’s record of service, and the documents and issues submitted with the application, there are insufficient mitigating factors to merit changes to the narrative reason and reentry code of the applicant's discharge.  

2.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  Counsel contends he believes the applicant’s discharge record to be in error or unjust and requests a change in the reason for the discharge and his reentry code because notwithstanding the lower command’s nonconcurring with the separation and the regulatory provisions to recycle the applicant, there was also an abject lack of evidence of intentional wrongdoing to cause his separation for minor disciplinary infractions.  However, 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 his issues.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he may have been unjustly discriminated.  The applicant’s statements alone, although authored on his behalf by his counsel, 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. 

4.  Regarding the applicant’s request to change the narrative reason and the reentry code of his discharge, 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 "JGA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 11, , for entry level performance and conduct.  The regulation further stipulates that no deviation is authorized.  Further, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  There are no basis upon which to grant a change to the reason or to the RE code.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate.

5.  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 length of service.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.

6.  Therefore, the reason for discharge being both proper and equitable, recommend the Board deny relief.



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review       Date:  28 March 2014       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  Yes [redacted]

Witnesses/Observers:  NA 

Board Vote:
Character Change:  NA	No Change:  NA
Reason Change:	3	No Change:  2
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	NA
Change Reason to:			Secretarial Authority
Change Authority for Separation:	NA
Change RE Code to:		1
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)		AR20130014353

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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