IN THE CASE OF:  	Mr. 

      BOARD DATE:  	25 April 2014

      CASE NUMBER:  	AR20130015136
___________________________________________________________________________

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 a change to his general, under honorable conditions discharge to fully honorable and a change to the narrative reason for discharge.

2.  The applicant states, in effect, he is requesting an upgrade to the characterization of his discharge and a change to the narrative reason in order for him to use his educational benefits so he can gain a meaningful, long lasting career.  He states he works part-time in security, is trying to climb out of poverty, and make a better life for himself and his family.  He contends during his military service he was a well-disciplined Soldier.  He deployed to Iraq in July 2005, and took part in convoy operations where he drove various types of heavy military vehicles, such as trucks and Humvees.  He received several medals for outstanding work, being an expert in a particular occupational field, and for a great briefing.  He states he left his appointed place of duty without proper authority (a company physical fitness test) and received punishment under the provisions of an Article 15.  He states he was dealing with the stress of his mother’s deteriorating health and from being in a combat zone.  He spoke with the battalion chaplain who understood his situation and helped him get discharged so he could go home to take care of his mother, after his unit returned from deployment.  He states he was not a mad, disgruntled Soldier but was a very stressed, confused, and worried Soldier who released his stress in an unbeneficial and regrettable unprofessional way.   
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			15 August 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				7 December 2006
d. Reason/Authority/SPD/RE Code:		Pattern of Misconduct, AR 635-200, Chapter
14-12b, JKA, RE-3
e. Unit of assignment:				A Company, 10th Brigade Support Battalion,
Fort Drum, NY
f. Current Enlistment Date/Term:		28 September 2004/3 years, 19 months
g. Current Enlistment Service:		2 years, 2 months, 10 days
h. Total Service:				2 years, 8 months, 10 days
i. Time Lost:					None
j. Previous Discharges:			DEP, (000929-001023), NA
   RA, (001024-010328), UNC
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		88M10, Motor Transport Operator
m. GT Score:					93
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Iraq (050811-060727)
q. Decorations/Awards:			NDSM, GWOTSM, ICM, ASR, OSR
r. Administrative Separation Board: 		NA
s. Performance Ratings:			NA
t. Counseling Statements:			Yes
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 28 September 2004, for a period of 3 years and 19 weeks.  He was 23 years old at the time of entry and a high school graduate.  He served in Iraq and did not earn any significant awards of valor or achievement.  He completed 2 years, 2 months, and 10 days of active duty service.  When his discharge proceedings, were initiated he was serving at Fort Drum, New York.  As a note, the applicant’s DD 214 (Certificate of Release or Discharge from Active Duty) reflects the applicant entered active duty on 
23 April 2004, however, his enlistment contract shows a date of 28 September 2004.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 6 November 2006, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200 , Chapter 14-12b, for a pattern of misconduct.  Specifically for:

     a.  receiving a Field Grade (FG) Article 15 for being disorderly, failing to go from his appointed place of duty, failing to obey a lawful order from SGT M, and treating with contempt toward SFC K and SGT M.

     b.  failing to report to accountability formation on 23 August 2006 and 18 September 2006.

2.  Based on the above pattern of misconduct, the unit commander recommended a general, under honorable conditions discharge.

3.  On 16 November 2006, the applicant consulted with legal counsel, was advised of the impact of the discharge action, 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 intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  

4.  On 20 November 2006, the separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 7 December 2006, under Army Regulation 635-200, Chapter 14-12b, with a general, under honorable conditions discharge, an SPD code of JKA, and an RE code of 4.   

6.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.  
EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  DA Form 705 (Army Physical Fitness Test Scorecard), dated 5 May 2006, reflects the applicant refused to finish the Army Physical Fitness Test (APFT).  He received a zero in each section of the test.

2.  Article 15, dated 12 June 2006, for failing to go to his appointed place of duty, disobeying a lawful order, treating SFC K and SGT M with contempt, and being disorderly x 2 (060122 and 060505).  The punishment consisted of reduction to the grade of E-1, forfeiture of $636 per month for two months, 45 days of extra duty, and a oral reprimand (FG). 

3.  DA Form 3822-R (Report of Mental Status Evaluation), dated 7 July 2006, reflects the applicant had a clear thought process and mentally responsible.
      
4.  Seven negative counseling statements dated between 5 May 2006 and 
19 September 2006, for refusing to complete the APFT, failing the APFT x 2 (060505 and 
17 May 2006), being barred from reenlistment, insubordinate conduct toward an NCO, disobeying an order, failing to report to accountability formation, dereliction of duty, and failing to be at his appointed place of duty. 
      
5.  Revocation Orders Number 183-008, Department of the Army, Headquarters, 1st Brigade Combat Team, Camp Liberty, Iraq, revoked permanent orders number 096-041, dated 
6 April 2006, pertaining to the award of the Army Commendation Medal (ARCOM).

6.  Enlistment Contract, dated 28 September 2004, reflects the applicant enlisted in the Army for a period of 3 years, and 19 weeks.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 7 August 2013, a DD Form 214, a self-authored statement with photos, dated 7 August 2013, a DA Form 2627, dated 12 June 2006, a letter from North Bay Regional Center, dated 17 April 2006

POST-SERVICE ACTIVITY: 

The applicant states he is working part-time in security and is trying to climb out of poverty.

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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14-12b, pattern of misconduct.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" will be assigned an RE Code of 3.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his characterization of service and a change to the narrative reason for discharge 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 pattern of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by a FG Article 15 and seven negative counseling statements.

3.  The applicant contends the narrative reason for the discharge should be changed.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," and the separation code is "JKA."  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.  

4.  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.  

5.  The applicant contends that an upgrade of his discharge would allow educational benefits through the use of the GI Bill and better employement.  However, 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 (ADRB).  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.  Further, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

6.  The applicant contends that he was stressed over the deteriorating health of his mother at the time, which affected his behavior and ultimately caused him to be discharged.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  

7.  The records show the proper discharge and separation authority procedures were followed in this case.  

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:  25 April 2014       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

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:	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)		AR20130015136



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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