IN THE CASE OF:  	Mr. 

      BOARD DATE:  	25 June 2014

      CASE NUMBER:  	AR20130019087
___________________________________________________________________________

Board Determination and Directed Action

1.  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 to be both proper and equitable and voted to deny relief.  
      
2.  However, notwithstanding the propriety of the applicant's discharge, the Board found that the applicant's DD Form 214, blocks 25, 26, 27 and 28, contain erroneous entries.  

3.  The Board directed the following administrative corrections and reissue of the applicant’s DD Form 214, as approved by the separation authority:
      
      a. block 25, separation authority changed to AR 635-200, paragraph 14-12c, 
      b. block 26, separation code changed to JKQ, 
      c. block 27, reentry code changed to 3
      d. block 28, narrative reason for separation changed to Misconduct (Serious Offense).  



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

2.  The applicant states, in effect, he was unjustly discharged.  He states served his country to best of his abilities, completed his full term of service, and deployed in combat to Iraq.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			21 October 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				31 March 2005
d. Reason/Authority/SPD/RE Code:		Misconduct, AR 635-200, Chapter 14-12c(2)
JKK, RE-4
e. Unit of assignment:				HHB, 3-82nd Field Artillery Regiment (Rear)
(Provisional), Fort Hood, TX
f. Current Enlistment Date/Term:		22 February 2001/4 years
g. Current Enlistment Service:		4 years, 16 days
h. Total Service:				4 years, 16 days
i. Time Lost:					24 days
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		13B10, Cannon Crewmember
m. GT Score:					112
n. Education:					HS Graduate
o. Overseas Service:				SWA
p. Combat Service:				Iraq (040417-050218)
q. Decorations/Awards:			GWOTEM, GWOTSM, NDSM, ASR
r. Administrative Separation Board: 		NA
s. Performance Ratings:			NA
t. Counseling Statements:			NIF
u. Prior Board Review:				No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 22 February 2001, for a period of 4 years.  He was 22 years old at the time of entry and a high school graduate.  He served in Iraq and his record is void of any significant acts of achievement and valor.  He completed 4 years and 16 days of active duty service.  When his discharge proceedings were initiated, he was serving at Fort Hood, Texas.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 24 March 2005, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense). Specifically for:

     a.  receiving two Articles 15 for violation of a lawful order, to wit consuming alcohol while deployed in Operation Iraqi Freedom II, for making a false official statement, and for being disorderly.

     b.  being court-martialed and found guilty on 14 January 2005, for disobeying a lawful command and order, being found drunk on duty as a sentinel, and committing assault with a loaded firearm.

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge.

3.  On 28 March 2005, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to an administrative separation board, 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 an under other than honorable conditions discharge.  

4.  On 29 March 2005, the separation authority waived further rehabilitation efforts and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  

5.  The applicant was separated on 31 March 2005, under Army Regulation 635-200, Chapter 14-12c(2), with an under other than honorable conditions discharge, an SPD code of JKK, and an RE code of 4.    

6.  The applicant's record shows he was absent without leave (AWOL) during the period 15 January 2005 through 6 February 2005.  As a note, he was not charged under 10 USC 972 for the period covering 26 March 2005 through 28 March 2005.  His mode of return is unknown.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Department of the Army Report of Result of Trial, dated 14 January 2005, reflects the applicant was found guilty of two specifications of disobeying a lawful command, disobeying a lawful order, violating a lawful general order (OJTF-7 GO1), and being posted as a sentinel and found drunk.  He was found not guilty of committing an assault with a loaded firearm.  The punishment consisted of confinement for 30 days and forfeiture of $973 pay per month for one month.

2.  DA Form 458 (Charge Sheet), dated 13 November 2004, reflects the applicant was charged with three specifications of disobeying a lawful command (041005 x 3), violating a lawful general order, being drunk on duty as a sentinel, and committing assault with a loaded firearm.

3.  Article 15, dated 3 June 2004, for violating a lawful general order, CENTCOM General Order Number 1A, making a false official statement, and disorderly conduct.  His punishment consisted of reduction to the pay grade of E-1, forfeiture of $597 pay per month for two months, and 45 days of extra duty and restriction (FG).

4.  Article 15, dated 30 August 2004, for violating a lawful general order, to wit, OJTF-7 GO-1A, by being found drunk on duty.  The punishment consisted of forfeiture of $597 pay for two months and 45 days of extra duty and restriction.

5.  DA Form 3822-R (Report of Mental Status Evaluation), dated 10 March 2005, indicates the applicant was mentally responsible and had a clear and normal thought process.  He was diagnosed with an occupational problem and alcohol abuse.  The evaluation determined the applicant could distinguish between right and wrong and did not have a major psychiatric disorder that would not make him responsible for his actions.

6.  A Killeen Police Department Arrest Report, dated 22 March 2005, reflects the applicant was arrested for criminal mischief, Class C.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 17 October 2013, and a DD Form 214 covering the period of service under review. 

POST-SERVICE ACTIVITY: 

The applicant did not provide any in support of his 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 14-12c, 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.  After a careful review of the applicant’s request, his military records, and the issue submitted with his application as to the administrative error in his DD Form 214, the service record reflects that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 25, separation authority as AR 635-200, paragraph 14-12c(2), block 26 separation code  as "JKK," block 27 reentry code of 4, and block 28, narrative reason for separation as “Misconduct.”  

2.  Therefore and as approved by the separation authority, the following administrative corrections are recommended:

      a. block 25, separation authority to AR 635-200, Chapter 14-12c
      b. block 26, separation code to JKQ
      c. block 27, reentry code to 3
      c. block 28, reason for separation to Misconduct (Serious Offense)   

3.  Except for the modifications as stated, above the discharge was both proper and equitable.

4.  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.  The misconduct diminished the applicant’s quality of service below that meriting a general or a fully honorable discharge.  The applicant’s record of service was marred by two Article 15s and a summary court-martial for multiple violations under the Uniform Code of Military Justice.

5.  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.  

6.  The applicant contends the discharge was unjust because he completed his full term of service and deployed to Iraq for 12 months of combat service.  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 he was unjustly discriminated.  In fact, the applicant’s two Article 15s and summary court-martial justify diminished the quality of the applicant’s service below that warranting an upgrade of his characterization of service.  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.  The records show the proper discharge and separation authority procedures were followed in this case.  

8.  In view of the foregoing, recommend the board make the following administrative corrections to the applicant’s DD Form 214 in block 25 change the separation authority to read “paragraph 14-12c,” in block 26 change the SPD code to read “JKQ,” in block 27 change the reentry code to read “3,” and in block 28 change the narrative reason for discharge to read “Misconduct (Serious Offense).”  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 June 2014        Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

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:		Yes
Change Characterization to:	No Change
Change Reason to:			Misconduct (Serious Offense)
Change Authority for Separation:	AR 635-200, Chapter 14, Paragraph 14-12c
Change RE Code to:		3
Grade Restoration to:		NA
Other:					Separation Program Designator (SPD) code JKQ





















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)		AR20130019087



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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