IN THE CASE OF:  	Mr. 

      BOARD DATE:  	30 May 2014

      CASE NUMBER:  	AR20130016513
___________________________________________________________________________

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 characterization of service was improper.  The Board noted the applicant was discharged under the provisions of Chapter 5-17, AR 635-200, by reason of physical condition, not a disability, with a general, under honorable conditions discharge.  Army Regulation 635-200, Chapter 5, paragraph 5-1b, states that no Soldier will be awarded a character of service under honorable conditions unless the Soldier is notified of the specific factors in his service record that warrant such a characterization, using the notification procedure.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable.  However, the Board determined the reason for discharge and his reentry code to be 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.  Counsel requests an upgrade of the applicant’s general, under honorable conditions discharge to fully honorable, a change to the narrative reason for discharge, and change to his reentry code.

2.  Counsel states, in effect, the applicant was involved in an incident with his First Sergeant (1SG) and struggled with anger management issues, he punched a door in his room.  He was taken to the emergency room and evaluated by mental health professionals.  He contends after consulting with a mental health psychiatrist, the applicant met the criteria for separation under AR 635-200, Chapter 5-17.  He states the applicant’s discharge is unjust because the unit failed to follow the proper procedures as outlined in accordance with AR 635-200, paragraph 5-17; and, the applicant was not counseled on the specific deficiencies he needed to address, nor was he given an opportunity to overcome those deficiencies.  In addition, the applicant states his discharge is inequitable because it was based on one isolated incident during his military service and he had no other adverse actions against him.  He believes the discharge under Chapter 5-17 was improper and a unfair characterization of his service because he was never given an opportunity for rehabilitation nor counseled on his failure to make progress.  The applicant desires to rejoin the military.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			5 September 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				26 January 2011
d. Reason/Authority/SPD/RE Code:		Condition, Not a Disability, AR 635-200,
Chapter 5-17, JFV, RE-3
e. Unit of assignment:				Bravo Battery, 4-1 Field Artillery Regiment, 
Fort Bliss, TX
f. Current Enlistment Date/Term:		22 January 2009/6 years, 18 weeks
g. Current Enlistment Service:		2 years, 5 days
h. Total Service:				2 years, 5 days
i. Time Lost:					None
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-3
l. Military Occupational Specialty:		13B10, Cannon Crewmember
m. GT Score:					123
n. Education:					GED
o. Overseas Service:				None
p. Combat Service:				None
q. Decorations/Awards:			AAM, NDSM, GWOTSM, ASR
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 22 January 2009, for a period of 6 years and 18 weeks.  He was 21 years old at the time of entry and had a General Equivalency Diploma.  He earned a AAM and completed 2 years and 5 days of active duty service.  When his discharge proceedings were initiated, he was serving at Fort Bliss, Texas.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 7 January 2011, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 5-17, for a condition, not a disability. Specifically for being unfit for duty due to a personality disorder or other mental condition that does not amount to a disability.

2.  Based on the above, the commander recommended a general, honorable conditions discharge.

3.  On 8 January 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and elected not to 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 12 January 2011, 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 26 January 2011, under Army Regulation 635-200, Chapter 5-17, with a general, under honorable conditions discharge, an SPD code of JFV, 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.  Article 15, dated 15 December 2010, for being disrespectful in deportment towards 1SG D, in violation of Article 91, of the UCMJ.  The punishment consisted of a reduction to the grade of E-2, forfeiture of $378, 14 days of extra duty and restriction (CG).

2.  Two counseling statements dated 2 December 2010, and 15 December 2010, for disrespect to a senior NCO and recommendation to separate under the provisions of AR 635-200, Chapter 5-17.
      
3.  Report of Behavioral Health Evaluation, dated 14 December 2010, reflects the applicant had a clear thought process and was mentally responsible.  He was diagnosed with an adjustment disorder with anxiety and depressed mood.
      
EVIDENCE SUBMITTED BY THE APPLICANT:

Counsel provided a DD Form 293, dated 19 August 2013, a DD Form 214, counsel’s letter dated 20 August 2013, a self-authored statement from the applicant, dated 19 August 2013, a copy of his separation packet, two statements of support from CPT O and Mr. D. 

POST-SERVICE ACTIVITY: 

The applicant did not provide any in support of his application.  

REGULATORY AUTHORITY:

1.  Army Regulation (AR) 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-17 specifically provides that a Soldier may be separated for other physical or mental conditions not amounting to a disability, which interferes with assignment to or performance of duty and requires that the diagnosis be so severe that the Soldier’s ability to function in the military environment is significantly impaired.  

2.  AR 635-200, paragraph 5-1, states that a Soldier being separated under this paragraph will be awarded a characterization of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status.  

3.  A general, under honorable conditions discharge is normally inappropriate for individuals separated under the provisions of Chapter 5-17 unless properly notified of the specific factors in the service that warrant 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 "JFV" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 5-17, condition, not a disability.

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

DISCUSSION AND RECOMMENDATION:

1.  After a careful review of all the applicant’s military records for the period of enlistment under review and the issue and documents he submitted, it appears that the characterization of service was improper.  

2.  Army Regulation 635-200, Chapter 5, paragraph 5-1b, states no Soldier will be awarded a character of service of general, under honorable conditions under this chapter unless the Soldier is notified of the specific factors in his service record which warrants such a characterization, using the notification procedure.  The record indicates the applicant was not notified of any specific factors which would warrant a general, under honorable conditions characterization of service. 

3.  The records show the proper discharge and separation procedures were not followed in this case.

4.  Counsel contends that a change in the reason for the discharge and reentry code would allow for the applicant’s reenlistment.  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 "JFV" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 5, paragraph 5-17, for a condition, not a disability.  The regulation further stipulates that no deviation is authorized.  

5.  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 is 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. 

6.  The applicant contends in his self-authored statement that he was discharged from the military for a single isolated incident.  However, the evidence of record indicates the applicant was discharge for having a condition, not a disability as diagnosed by a competent mental health care professional.  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.  The applicant’s statements alone do 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.   

7.  Therefore, the characterization not being proper and equitable, recommend the Board grant partial relief in the form of an upgrade of the applicant's characterization of service to honorable.  However, the reason for discharge and reentry code were both proper and equitable, recommend the Board deny relief.


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 characterization of service was improper.  The Board noted the applicant was discharged under the provisions of Chapter 5-17, AR 635-200, by reason of physical condition, not a disability, with a general, under honorable conditions discharge.  Army Regulation 635-200, Chapter 5, paragraph 5-1b, states that no Soldier will be awarded a character of service under honorable conditions unless the Soldier is notified of the specific factors in his service record that warrant such a characterization, using the notification procedure.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable.  However, the Board determined the reason for discharge and his reentry code to be proper and equitable and voted not to change it.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review         Date:  30 May 2014        Location: Washington, DC

Did the Applicant Testify?  NA

Counsel:  Yes [Redacted]   

Witnesses/Observers: NA

Board Vote:
Character Change:  5	No Change:  0
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:			NA
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)		AR20130016513



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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