IN THE CASE OF:  	

      BOARD DATE:  	2 October 2013

      CASE NUMBER:  	AR20130015097
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review and considering the 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 that his under other than honorable conditions discharge be upgraded to uncharacterized and the reason for the discharge be changed.
 
2.  The applicant states, in effect, that he was not in the military for longer than 180 days of active duty, never completed basic training, and was discriminated and abused for being homosexual, he had an ineffective counsel who pled guilty without his consent, and he is now unable to obtain employment or enroll in a university.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			15 August 2013	
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				6 February 2008
d. Reason/Authority/SPD/RE Code:		Misconduct (Serious Offense),              								AR 635-200, 14-12c, JKQ, RE-3	
e. Unit of assignment:				A Co, 232d Medical Bn, Fort Sam Houston, TX	
f. Current Enlistment Date/Term:		13 September 2007, 4 years
g. Current Enlistment Service:		4 months, 24 days
h. Total Service:				2 years, 0 months, 17 days
i. Time Lost:					None
j. Previous Discharges:			USAR (060120-070912), NIF
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		None
m. GT Score:					108
n. Education:					HS Graduate
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			NDSM
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 US Army Reserve on 20 January 2006 and on 13 September 2007 he joined the Regular Army for a period of 4 years.  He was 19 years old at the time and was a high school graduate.  When his discharge proceedings were initiated he was serving at Fort Sam Houston, TX.  His record does not contain any meritorious achievements or acts of valor.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 25 January 2008, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, paragraph 14-12c, specifically for the commission of the following serious offenses:

	a. Wrongfully disobeyed a lawful order

	b. Assault consummated by battery

	c. Communicated a threat

2.  Based on the above misconduct, the commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 28 January 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to an administrative separation board, and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The senior intermediate commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  

4.  On 1 February 2008, the General Court Martial Convening Authority, approved the unconditional waiver request and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  

5.  The applicant was separated from the Army on 6 February 2008, under Army Regulation 635-200, Chapter 14-12c, with an under other than honorable conditions discharge, an SPD code of JKQ, and an RE code of 3.  

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Summary Court-Martial, dated 10 December 2007, for disobeying a lawful order from an NCO (071127), assaulted two other Soldiers (071118), and maliciously communicated false information (071118).  His punishment consisted of 14 days of confinement.

2.  Eight negative counseling statements dated between 16 October 2007 and 27 November 2007, for failure to report on multiple occasions, being AWOL, failure to obey orders, malingering, insubordination, and initiation of separation action.

3.  A CID Report dated 21 November 2007, that indicates the applicant was the subject of an investigation for a bomb threat.

4.  An MP Report dated 19 November 2007, indicating the applicant was the subject of an investigation for a bomb threat, underage drinking, drunk and disorderly conduct, failure to obey orders, damage to government property, public drunkenness, and communicating a threat.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided an online application, 2 sets of orders, a DD Form 214, and a signature page with an offer to plead guilty.

POST-SERVICE ACTIVITY: 

None provided.

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 14-12c, for 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 a change for the narrative reason of his separation 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 or to change the narrative reason for his separation.  

2.  The record confirms 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.  The applicant’s record of service was marred by a summary court-martial and several 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.  His misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  The applicant’s misconduct clearly diminished the quality of his service below that meriting a general or an honorable discharge. 

4.  The applicant requested a change to the narrative reason for his discharge.  However, he was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with an under other than 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 entered 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.  

5.  The applicant contends that he was discriminated and abused for being homosexual, had an ineffective counsel who pled guilty without his consent, and he is now unable to obtain employment or enroll in a university.  However, the record does not contain any evidence about him being homosexual.  His service record shows he was discharged for misconduct, specifically for the commission of serious offenses.  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 this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discriminated.  In fact, the applicant’s summary court-martial conviction and numerous negative counseling statements justify a pattern of serious misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any corroborating or supporting documentation with his request.

6.  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.  

7.  The applicant also contends that he has been unable to obtain employment or enroll in school.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  Moreover, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

8.  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: 2 October 2013        	Location: Washington, DC

Did the Applicant Testify?  No

Counsel: None

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:		No Change
Change RE Code to:			No Change
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	UOTH - Under Other Than Honorable
ADRB Case Report and Directive (cont)		AR20130015097

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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