IN THE CASE OF:	Mr. 

      BOARD DATE:	25 April 2014

      CASE NUMBER:	AR20130014540
___________________________________________________________________________

Board Determination and Directed Action

1.  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 overall length and quality of the applicant's service, and the circumstances surrounding the discharge, which shows the applicant did not receive UCMJ punishment for any misconduct, and the immediate chain of command’s recommendation for retention, mitigated the discrediting entry in the service record.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable.

2.  Further, notwithstanding the propriety of the applicant's discharge, the Board, on the basis of equity, voted to change the applicant’s reason for discharge, authority, and separation code and directed that a new DD Form 214 be issued reflecting the following changes:

      a. block 24, honorable
      b. block 25, separation authority changed to AR 635-200, paragraph 14-12a;
      c. block 26, separation code changed to JKN; and
      d. block 28, narrative reason for separation changed to Misconduct (Minor Infractions).   




      
      
      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, in a self-authored statement, that at the time leading to his discharge, he was a paratrooper for about seven months and his company commander was trying to involuntarily separate him based on two statements that he smoked spice.  The statements were made by two ex-paratroopers who were involuntarily separated.  At that time, his room and car were searched several times, but no spice was found.  His urinalysis was also negative but his command kept insisting on discharging him from the Army.  He served his country with great pride and selfless service.  Ultimately, his separation would not allow for a court session.  He received no response when he asked his first sergeant of what was going to happen.  

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	5 August 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	9 July 2013
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200, 
			Paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	G Co, 82nd BSB, 3rd BCT, Fort Bragg, NC
	f.	Current Enlistment Date/Term:	12 June 2012, 3 years, 24 weeks
	g.	Current Enlistment Service:	1 year, 0 months, 28 days
	h.	Total Service:	1 year, 0 months, 28 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	92G1P, Food Service Operations Specialist
	m.	GT Score:	108
	n.	Education:	HS Graduate
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	AAM; NDSM; GWOTSM; ASR
	r.	Administrative Separation Board:	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 12 June 2012, for a period of 3 years and 24 weeks.  He was 19 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 92G1P, Food Service Operations Specialist.  He earned an AAM award.  He completed 1 year and 28 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 20 June 2013, 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).  Specifically for the following offenses:  

	a.	failing to obey AR 600-85, paragraph 4-2p(1), by wrongfully smoking “Spice” during a field training exercise (130310-130322), and 
	b.	making false official statements when questioned (130326).

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

3.  Note that the applicant acknowledged receipt of the aforementioned notification on 16 May 2013 and on 21 May 2013, 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 (NIF).  The unit commander subsequently recommended suspending the applicant’s separation from the Army for a period of nine months.  The intermediate commander reviewed the proposed action and recommended suspending the separation with a general, under honorable conditions discharge for a period of nine months.  

4.  On 21 June 2013, the separation authority 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 9 July 2013, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), 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 are no negative counseling statements or any actions under the UCMJ in the applicant’s AMHRR.

2.  Memorandum for Record, dated 16 May 2013, subject: Probable Cause Determination Regarding [names of several Soldiers that included the applicant], rendered by the applicant’s unit commander, indicates that according to two sworn statements by two Soldiers, the applicant and several Soldiers including the two Soldiers were identified as having smoked “Spice” while in the field during a BCT intensive training cycle from 10 March 2013 to 23 March 2013.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a self-authored statement with his application, dated 29 May 2013.

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

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 available military records, and the document and issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or to change 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 serious incident of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  

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 contentions that his discharge was unjust because it was based on two statements rendered by two Soldiers who were involuntarily discharged, his urinalysis also returned as negative, and the numerous searches conducted in his room and car found no spice, were carefully considered.  The rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.  There is no evidence in the record, nor has the applicant produced any evidence, to support granting changes to the characterization of service and the narrative reason for his discharge.  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 or a change to the narrative reason for his discharge.

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

6.  Regarding the applicant’s contention that the narrative reason for the discharge should be changed, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ."  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.  

7.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.

Board Determination and Directed Action

1.  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 overall length and quality of the applicant's service, and the circumstances surrounding the discharge, which shows the applicant did not receive UCMJ punishment for any misconduct, and the immediate chain of command’s recommendation for retention, mitigated the discrediting entry in the service record.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable.

2.  Further, notwithstanding the propriety of the applicant's discharge, the Board, on the basis of equity, voted to change the applicant’s reason for discharge, authority, and separation code and directed that a new DD Form 214 be issued reflecting the following changes:

      a. block 24, honorable
      b. block 25, separation authority changed to AR 635-200, paragraph 14-12a;
      c. block 26, separation code changed to JKN; and
      d. block 28, narrative reason for separation changed to Misconduct (Minor Infractions).   

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

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

Did the Applicant Testify?  No

Counsel:  None

Board Vote:
Character Change:  5	No Change:  0
Reason Change:	5	No Change:  0
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	Honorable
Change Reason to:			Misconduct (Minor Infractions)
Change Authority for Separation:	AR 635-200, Chapter 14, Paragraph 14-12a
Change RE Code to:		NA
Grade Restoration to:		NA
Other:  				Change Separation Program Designator (SPD) code to JKN

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)		AR20130014540

Page 6 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1