IN THE CASE OF:  	Mr. 

      BOARD DATE:  	25 April 2014

      CASE NUMBER:  	AR20130014356
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s Discussion and Recommendation that follows, the Board determined that the characterization of service was too harsh based on the applicant’s overall length and quality of service to include combat, and the circumstances surrounding the discharge (i.e. drove to fellow Soldiers house to prevent him from committing suicide) and as a result it is inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable.  The Board determined the reason for discharge was proper and equitable and voted not to change it.


      
      
      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 discharge from general, under honorable conditions to honorable and a change to his reentry eligibility (RE) code.

2.  The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being able to rejoin the military.  The applicant contends he made two major mistakes which resulted in his discharge and regrets these mistakes.  He believes that with the exception of the two mistakes he was a good Soldier.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		5 August 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			3 November 2011
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, Chapter
      14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			A Co, 6th BN, 353d IN Rgt, Fort Polk, LA
f. Current Enlistment Date/Term:	23 April 2009, 4 years
g. Current Enlistment Service:	2 years, 6 months, 11 days
h. Total Service:			5 years, 9 months, 27 days
i. Time Lost:				None
j. Previous Discharges:		USAR-060107-070124/NA										RA-070125-090422/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	88M10, Motor Transport Operator
m. GT Score:				109
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan (080424-090717)
q. Decorations/Awards:		AAM, AGCM, ACM-w/2CS, NDSM, GWOTSM, ASR, 						NATOMDL, CAB
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 Army Reserve on 7 January 2006 and on 24 January 2007, he was discharged for enlistment in the Regular Army.  The applicant enlisted in the Regular Army on 25 January 2007, for a period of 3 years and 2 weeks.  He was 20 years old at the time of entry and a high school graduate.  On 23 April 2009, he reenlisted for a period of 4 years.  His record indicates he served in Afghanistan; earned several awards to include the AAM, AGCM, and the CAB; and achieved the rank of SPC/E-4.  He completed 5 years,           9 months, and 27 days of total military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 3 October 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason misconduct (serious offense) for wrongfully operating a vehicle while under the influence of alcohol with a valid breath sample of .094% breath alcohol content (110826) and wrongfully using cocaine between (080420 and 080422).

2.  Based on the above misconduct, the unit commander recommended a GD and advised the applicant of his rights.

3.  On 4 October 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement on his behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed action and recommended approval of the separation with a GD.  

4.  On 25 October 2011, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of GD.

5.  The applicant was discharged from the Army on 3 November 2011, with a characterization of service of GD under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

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








EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There is a positive urinalysis report contained in the record coded; IU (Inspection Unit), dated 22 April 2008, Cocaine.

2.  A Military Police Report, dated 27 August 2011, that indicates the applicant was the subject of an investigation for operating a vehicle while intoxicated.

3.  A General Officer Memorandum of Reprimand, dated 2 September 2011, indicating the applicant was reprimanded for driving while intoxicated with a blood alcohol content of .094% breath alcohol content.

4.  Two negative counseling statements dated 27 August 2011 and 6 September 2011, for testing positive for cocaine on a urinalysis test in 2008 and being arrested as a result of a DUI.

5.  A Alcohol Incident Report dated 26 August 2011, which was taken at a random gate check.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a self-authored statement, letters of recommendation and a copy of his DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

None were provided with the 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.

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 "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (serious offense).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" 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 a change to his RE code was carefully considered.  However, after examining the applicant’s record of service, his military records, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's 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 misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by his wrongful use of cocaine, DUI, a GOMOR and his negative counseling statements.

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.  Additionally, the evidence of record shows an incident of misconduct for which the Army discharged the applicant that occurred in a prior term of enlistment.  However, AR 635-200 provides that commanders may consider incidents from a prior period of enlistment on the issue of retention or separation.  The separation authority’s decision memorandum does not state the prior incident was not considered for the purpose of characterization.  However, the presumption of government regularity prevails in the discharge process, as the separation authority cannot consider information from prior periods of service when determining characterization and there is no affirmative indication the separation authority did so.  The applicant’s period of service under consideration was marred by a DUI, GOMOR and a negative counseling statement that justified the characterization of service awarded.  

5.  Therefore, even if the separation authority considered incidents from an earlier period of service in determining the characterization for the period under consideration, it was a harmless error. The record does not contain any evidence of arbitrary or capricious actions by the command and it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

6.  The applicant contends he had good service with the exception of his two mistakes and deserves an honorable characterization.  However, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  It appears the applicant’s generally good record of service was the basis for his receiving a GD instead of the normal UOTHC discharge.  The character of the applicant’s discharge is commensurate with his overall service record.   

7.  The applicant expressed his desire for an upgrade of his discharge for the purpose of being able to rejoin the military.  However, 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. 

8.  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 to include the RE code being both proper and equitable, the analyst recommends the Board deny relief. 

10.  After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation, the Board determined that the characterization of service was too harsh based on the applicant’s overall length and quality of service to include combat, and the circumstances surrounding the discharge (i.e. drove to fellow Soldiers house to prevent him from committing suicide) and as a result it is inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable and voted not to change it.

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s Discussion and Recommendation, the Board determined that the characterization of service was too harsh based on the applicant’s overall length and quality of service to include combat, and the circumstances surrounding the discharge (i.e. drove to fellow Soldiers house to prevent him from committing suicide) and as a result it is inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable.  The Board determined the reason for discharge was proper and equitable and voted not to change it.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review	  Date:  25 April 2014      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA 

Board Vote:
Character Change:  4	No Change:  1
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:	Honorable
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)		AR20130014356



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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