IN THE CASE OF:  	Mr. 

      BOARD DATE:  	10 March 2014

      CASE NUMBER:  	AR20130016441
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony and notwithstanding the Discussion and Recommendation which follows, the Board determined that the applicant's length and quality of his service including his combat service and post-service achievements, were sufficiently meritorious to overcome the seriousness of the misconduct that caused his separation from the Army, and voted to change the characterization of service.  However the Board found the narrative reason for separation 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 that his discharge be upgraded to honorable and a change to the narrative reason for discharge.

2.  The applicant states, in effect, that he requests an upgrade to his discharge and a change to his narrative reason for separation.  His discharge was improper and inequitable and based on the timing of his separation because he was discharged four months prior to his ETS date.  He was not allowed a rehabilitative transfer.  A pattern of misconduct discharge is usually given to Solders who commit a serious crime and his mistake was not intentional. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		6 September 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			16 July 2012
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, Chapter 14, paragraph 14-12b	 					JKA, RE-3
e. Unit of assignment:			HHC, 17th Combat Sustainment Support Battalion 						Joint Base Elmendorf-Richardson, AK
f. Current Enlistment Date/Term:	29 April 2009, 3 years, 29 weeks
g. Current Enlistment Service:	3 years, 2 months, 25 days
h. Total Service:			3 years, 2 months, 25 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3	
l. Military Occupational Specialty:	35F10, Intelligence Analyst 
m. GT Score:				112
n. Education:				GED
o. Overseas Service:			SWA
p. Combat Service:			Afghanistan (100603-110606)
q. Decorations/Awards:		NDSM, ACM-w/2 CS, GWOTSM, ASR, OSR-2	 						MUC, NATOMDL 
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes	
u. Prior Board Review:			Yes, 6 March 2013

SUMMARY OF SERVICE:		
	
The applicant's record shows he enlisted in the Regular Army on 29 April 2009, for a period of 3 years and 29 weeks.  He was 17 years old at the time and had a GED.  When his discharge proceeding were initiated he was serving at Joint Base Elmendorf-Richardson, AK.  He served 3 year, 2 months, and 25 days of active service.  His record documents no acts of valor or significant achievement; however, he served a one year combat tour of duty in Afghanistan in June 2010.   
SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 14 May 2012, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct; specifically for:

	a.  failing to be at his appointed place of duty at the time prescribed on divers occasions and
	b.  failing to maintain positive control of his weapon and his advanced combat helmet on two separate occasions while deployed to Afghanistan.

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

3.  On 21 May 2012, 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 commander reviewed the proposed action and recommended approval of a general, under honorable conditions discharge.  

4.  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 separated on 16 July 2012, under Army Regulation 635-200, Chapter 14-12b (Pattern of Misconduct), with a general, under honorable conditions discharge, an SPD code of JKA and an RE code of 3.

6.  The applicant’s record does not show any time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A Company Grade Article 15, dated 11 November 2010, for willfully disobeying a lawful order from an NCO to get a haircut (101016), for violating a lawful general order by wrongfully failing to maintain positive control of his weapon (101031), and failing to maintain accountability of his Advance Combat Helmet (ACH), (100830).  The punishment imposed consisted of a reduction to E-2, forfeiture of $378.00 pay, suspended, and extra duty and restriction for 14 days.

2.  A Company Grade Article 15, dated 26 April 2011, for wrongfully failing to maintain positive control of his weapon by leaving it in his vehicle (101017).  The punishment imposed consisted of a reduction to E-1, forfeiture of $342.00 pay, and extra duty for 14 days.

3.  Numerous counseling statements covering the period 25 June 2010 through 13 March 2012, for failing to report, disrespect toward NCOs, insubordinate conduct, failing to maintain his weapon, TA 50 and military gear, sleeping on duty, consideration of others, walking around at night without a battle buddy while in Afghanistan, failing to maintain his ACH, lying to a NCO, letter of concern for insubordination to a NCO, disobeying a NCO, and informing the applicant of a Chapter 13.

EVIDENCE SUBMITTED BY THE APPLICANT: 

An online DD Form 293 application, DD Form 214 and an unofficial college transcript.

POST-SERVICE ACTIVITY: 

Attending college.

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, for a 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 requests for an upgrade of the characterization of his discharge and a change to the narrative reason were carefully considered.  However, after examining his military records and the issues submitted with the application, there are insufficient factors to merit an upgrade of the applicant's discharge.  

2.  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 repeated incidents of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant’s service was marred by two Articles 15 for multiple violations of the Uniform Code of Military Justice, and several negative counseling statements.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.  

4.  The applicant contends that his discharge was improper and inequitable and based on the timing of his separation because he was discharged four months prior to his ETS date.  In addition, he contends his last Article 15 violated the spirit of the regulation.  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 his issue.  There is no evidence in the record, nor has the applicant produced any evidence or documentation to support his contentions.  In fact the applicant’s two Articles 15, under the Uniform Code of Military Justice, and numerous negative counseling statements justify a pattern of misconduct.  The applicant’s statement alone does not overcome the government’s presumption of regularity in this case. 

5.  Furthermore, the applicant’s last Article 15 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.   

6.  The applicant contends he was not afforded the opportunity for a rehabilitation transfer; however, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  After reviewing the applicant’s discharge packet, the separation authority properly waived the rehabilitative requirements.  Moreover, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counselings and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

7.  The applicant contends that he immediately enrolled in Arizona State University, where he has made the dean's list twice in a row with a grade point average of 3.74/4.00.  The applicant’s post-service accomplishments have been noted as outlined on the application and in the documents with the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  

8.  The applicant also requested a change to the reason for his discharge.  However, the applicant’s discharge was directed 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 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.  

9.  Records show the proper discharge and separation authority procedures were followed in this case.

10.  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: Personal Appearance    Date:  10 March 2014      Location: Washington, DC

Did the Applicant Testify?   Yes

Counsel:  None

Witnesses/Observers:  None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE

1.  The applicant submitted the following additional documents.

	a.  Personal statement – 1 page.

2.  The applicant presented the additional contention:

	a.  Change the narrative reason for separation to ‘Secretarial Authority’.

In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

Board Vote:
Character  	Change:  3	No Change:  2
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 RE Code to:		NA
Grade Restoration to:		NA
Change Authority for Separation:	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)		AR20130016441



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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