IN THE CASE OF:  	Mr. 

      BOARD DATE:  	7 May 2014

      CASE NUMBER:  	AR20130015545
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, and considering the examiner’s 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 an upgrade of his discharge from general, under honorable conditions to honorable, a change to his reentry eligibility (RE) code and to his narrative reason for discharge.

2.  The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being able to serve his country again.  He contends his discharge was inequitable because it was based on one isolated incident in 36 months of service with no other adverse action.  He was not provided legal counsel, or the ability to discuss the Article 15 proceedings pertaining to allegations of adultery with counsel prior to his hearing.  He was subsequently discharged and given an RE Code of 3, which requires a waiver in order to reenlist.  He was a dedicated Soldier that had a bright future in the Army.  He has matured significantly from the event which led to his discharge.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		19 August 2013
b. Discharge Received:		General, Under Honorable Conditions Discharge
c. Date of Discharge:			10 May 2013
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			71st CM SMK/DECON, Schofield Barracks, HI
f. Current Enlistment Date/Term:	4 November 2009, 3 years and 27 weeks
g. Current Enlistment Service:	3 years, 6 months, 7 days
h. Total Service:			3 years, 6 months, 7 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	74D10, Chemical Ops Specialist
m. GT Score:				101
n. Education:				HS Graduate
o. Overseas Service:			Hawaii
p. Combat Service:			None
q. Decorations/Awards:		AAM, NDSM, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None
u. Prior Board Review:			No



SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 4 November 2009, for a period of 3 years and 27 weeks.  He was 24 years old at the time of entry and a high school graduate.  His record indicates he achieved the rank of SPC/E-4 and received several awards to include an AAM.  He was serving at Schofield Barracks, HI when his separation was initiated.  He completed     3 years, 6 months, and 7 days of total military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record is void of the complete facts and circumstances concerning the events which led to the discharge from the Army to include the commander's notification memorandum, the applicant's election of rights memorandum, and the chain of command's recommendation memorandum.  

2.  The record of evidence contains the trial counsel's legal review memorandum and the separation authority's approval memorandum. 

3.  The trial counsel's legal review memorandum, dated 26 April 2013, indicates the applicant was pending separation under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for commission of a serious offense.  The applicant was recommended for a characterization of service of general, under honorable condition by his chain of command.

4.  On 29 April 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 10 May 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), 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:

The applicant's available record does not contain any recorded actions under the UCMJ or counseling statements.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 and a Congressional letter.

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 and narrative reason for discharge were carefully considered.  However, after examining the applicant’s available 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 applicant’s record is void of the complete facts and circumstances concerning the events which led to his discharge from the Army.  The record contains the trial counsel's legal review memorandum and the separation authority's approval memorandum.  These documents identify the reason and characterization of the discharge and the presumption of government regularity prevail in the discharge process.  

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 contends his discharge was inequitable because it was based on one isolated incident in 36 months of service with no other adverse action and that he was not provided with legal counsel.  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 this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his discharge was based on one isolated incident and that he was not provided with legal counsel.  The applicant’s statements alone does 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.   

5.  The applicant requested his RE code and narrative reason be changed.  However, 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, for misconduct (serious offense).  The regulation further stipulates that no deviation is authorized.  

6.  Further, 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.  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. 

7.  The available record does not contain any indication or evidence of arbitrary or capricious actions by the command.  If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record.

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:  7 May 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)		AR20130015545



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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