IN THE CASE OF:	Ms. 

      BOARD DATE:	13 March 2014

      CASE NUMBER:	AR20130018596
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review, hearing her testimony and notwithstanding the Discussion and Recommendation that follows, the Board determined the discharge is now inequitable.  The Board found that the characterization of service was too harsh based on the circumstances surrounding the applicant’s discharge (Soldier’s separation proceedings was initiated 16 months after she received UCMJ punishment for an offense that was used as the primary basis for her involuntary separation with no subsequent or further misconduct) mitigated the discrediting entry in her service record.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority.  The Board further determined the reentry eligibility code 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 to upgrade the characterization of her service from general, under honorable conditions to fully honorable, and to change the narrative reason for her discharge.

2.  The applicant states, in effect, her discharge should be changed due to errors in her separation packet stating that she received a field grade Article 15 while actually, it was imposed at the company grade level.  Her ERB also states she was demoted, but she was always paid as an E-3.  She feels she was treated unfairly and it was well over a year after she received the company Article 15 when she was discharged.  She states she was mistreated.  Since her discharge, it has been hard for her to adapt to the economy with her current discharge on her military records.  She was turned down for federal and state job opportunities, and being a single mother of three, it is complicated.  She would like to return to the Armed Forces, however, her records have stopped her from reenlisting.  She is in desperate need of help.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	8 October 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	25 November 2009
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200, 
			Paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	HHD, 519th MP Bn, Fort Polk, LA
	f.	Current Enlistment Date/Term:	18 January 2007, 5 years
	g.	Current Enlistment Service:	2 years, 10 months, 8 days
	h.	Total Service:	2 years, 10 months, 8 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	31B10, Military Police
	m.	GT Score:	89
	n.	Education:	HS Graduate
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	NDSM; GWOTSM; ASR
	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 Regular Army on 18 January 2007, for a period of 5 years.  She was 18 years old at the time of entry and a high school graduate.  She was trained in and awarded military occupational specialty (MOS) 31B10, Military Police.  Her record documents no acts of valor or significant achievement.  She completed 2 years, 10 months, and 8 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 5 November 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason misconduct (serious offense), specifically for stealing a credit card, of a value of about $188.17, the property of SPC B (080509).

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

3.  On 12 November 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted a statement on her 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.  In an undated memorandum, 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 25 November 2009, 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), 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:

1.  Article 15, dated 25 July 2008, for stealing a credit card, property of a Soldier and attempted to use the credit card of a value of $1185.52 (080509).  The punishment consisted of reduction to the grade of E-2, forfeiture of $352 per month for two months (suspended), 14 days of extra duty and restriction, (CG). 

2.  One negative counseling statement, dated 15 May 2009, for being investigated for incidents that transpired in her government quarters, commission of a serious offense.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a memorandum, dated 16 November 2009, subject: Soldier’s matters: Administrative Separation Action [the applicant]; applicant’s statement, dated 12 November 2009; DA Form 2627, Record of Proceedings under Article 15, UCMJ, dated 25 July 2008; mental status evaluation, dated 20 May 2009; and ERB.

POST-SERVICE ACTIVITY: 

The applicant provided none. 

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.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of her discharge and to change the narrative reason for her discharge was carefully considered.  However, after examining the applicant’s record of service, her military records, and the documents and 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 her 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 serious incidents of misconduct, the applicant diminished the quality of her service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 action for 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.  

4.  The applicant contends the discharge was unjust because there were errors in her separation packet stating that she received a field grade Article 15 but actually, it was imposed at the company grade level; her ERB indicates she was demoted, but she was always paid as an E-3; and her discharge was over a year after she received the company Article 15 and as a result she was treated unfairly and mistreated.  However, the stated errors regarding a field grade versus a company grade Article 15 being mentioned and her ERB indicating she was demoted have no bearing on the basis for her discharge.  The applicant correctly revealed her company grade Article 15 being referred to as a field grade Article 15 in the separating authority’s memorandum to the applicant, which barred her from reentering a military installationat the time of the discharge.  Notwithstanding this error, it appears that the rights of the applicant were not prejudiced by the error on file in this case.  Department of Defense Directive 1332.28 stipulates that a discharge is proper unless the error was a prejudicial error.  In essence, the applicant had a record of serious incident of misconduct and no significant favorable entries in the service record.  The evidence did not create a substantial doubt that the discharge would have been any different if the stated error had not been made.  The ERB she provided makes no mention of her reduction in grade and her claim that the offense for which she was punished by an Article 15, the basis for her discharge, occurred over a year prior to her discharge is considered to be within the command’s discretion and not viewed as a prejudicial error.  Therefore, the rationale the applicant provided as the basis for what she believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.  

5.  Moreover, there is also 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 her issues.  There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that she may have been unjustly discriminated.  In fact, the applicant’s Article 15 justifies a serious incident of misconduct; wherein, she stole a credit card from a fellow Soldier.  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.  

6.  The applicant requests a change in the reason for the discharge, perhaps to allow for her 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 "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 serious offenses.  The regulation further stipulates that no deviation is authorized.

7.  The applicant desires to rejoin the Military Service.  However, 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.

8.  The applicant contends it has been difficult to adapt to the economy and has been turned down for federal and state job opportunities with her current discharge on her military records.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

9.  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 her overall service record.  Accordingly, the 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: 13 March 2013     Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel: None

Witnesses/Observers: None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted no additional documents or contentions.

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

Board Vote:
Character Change:  3	No Change:  2
Reason Change:	3	No Change:  2
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	Honorable
Change Reason to:			Secretarial Authority
Change Authority for Separation:	AR 635-200, Chapter 5-3
Change RE Code to:		No Change
Grade Restoration to:		NA
Other:  				Separation Program Designator (SPD) code JFF












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)		AR20130018596

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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