IN THE CASE OF:  	Mr. 

      BOARD DATE:  	10 March 2014

      CASE NUMBER:  	AR20130019730
___________________________________________________________________________

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 that follows, the Board determined the discharge is now inequitable.  The Board found the overall length and quality of the applicant's service, his combat service, and the circumstances surrounding his discharge mitigated the discrediting entry in his service record.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable.  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 an upgrade of his general, under honorable conditions discharge to honorable and a change to the narrative reason for discharge.

2.  The applicant states, in effect, his narrative reason for discharge does not show a pattern of misconduct in his official record.  He contends he has proven to be an outstanding person after discharge.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			28 October 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				5 August 2010
d. Reason/Authority/SPD/RE Code:		Pattern of Misconduct, AR 635-200, Chapter 
14-12b, JKA, RE-3
e. Unit of assignment:				F Company, 2-509th Infantry (Airborne), Fort
Richardson, AK
f. Current Enlistment Date/Term:		8 May 2007/5 years
g. Current Enlistment Service:		3 years, 2 months, 27 days
h. Total Service:				4 years, 9 months, 17 days
i. Time Lost:					None
j. Previous Discharges:			DEP, 050823-081018, NA
RA, 051019-070507, HD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		92F1P, Petroleum Supply Specialist
m. GT Score:					84
n. Education:					NIF
o. Overseas Service:				SWA
p. Combat Service:				Iraq, 061004-071111
Afghanistan, 090301-100301
q. Decorations/Awards:			ACM-CS, ICM-2CS, ARCOM-2, AAM, AGCM,
NDSM, GWOTSM, ASR, OSR-3, NATO MDL
r. Administrative Separation Board: 		NA
s. Performance Ratings:			NA
t. Counseling Statements:			Yes
u. Prior Board Review:				Yes
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 19 October 2005 for a period of 4 years and 24 weeks.  He reenlisted in the Army on 8 May 2007 and was 21 years old at the time of reenlistment.  He served in Iraq and Afghanistan and earned two ARCOMs and an AAM.  He completed 4 years, 9 months, and 17 days of total active duty service.  When his discharge proceedings were initiated, he was serving at Fort Richardson, Alaska.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 10 June 2010, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12b, for a pattern of misconduct. The commander specifically indicated the soldier disrespected a noncommissioned officer (091012); wrongfully assaulted a noncommissioned officer (091212); and had no potential for rehabilitation.

2.  Based on the above pattern of misconduct, the commander recommended a general, under honorable conditions discharge.

3.  On 16 June 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and elected to submit a statement in his own behalf.  In an undated self-authored statement, the applicant requested to be retained in the Army.  He contended he was a good Soldier and an asset to the military.  He submitted two letters of support from his chain of command.  The commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  

4.  On 29 June 2010, 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 5 August 2010, under Army Regulation 635-200, Chapter 14-12b, 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 contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1  Article 15, dated 3 November 2009, being disrespectful towards an NCO x 3, assaulting an NCO (091012), and failure to obey a lawful general order, by wrongfully chambering a round in his weapon.  The punishment consisted of reduction to the grade of E-2, forfeiture of $784 per month for two months (suspended) to be automatically remitted if not vacated on or before 1 January 2010, 45 days of extra duty and restriction (suspended) to be automated remitted if not vacated before 1 January 2010, (FG).  The applicant appealed the imposed punishment to the brigade commander.  On 11 November 2009 the applicant’s appeal was denied.  

2.  An email containing a Military Police (MP) Report, dated 21 April 2010, reflecting the applicant was the subject of an investigation for communicating a threat by phone.
      
3.  DA Form 4856 (Developmental Counseling Form), dated 13 May 2010, for initiation of separation action for patterns of misconduct.  The applicant disagreed with the information on the counseling statement based on false information and improper counseling.
      
4.  MEDCOM Form 4038 (Report of Behavioral Health Evaluation), dated 11 June 2010, indicating the applicant had a clear thought process and normal behavior.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 17 August 2013, and a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant states he has proven he is an outstanding person since his discharge from the military.

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, 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 request for an upgrade of the characterization of his discharge and a change to his narrative reason for discharge was carefully considered.  However, after examining the applicant’s record of service, his military records, the document and the issue 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 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 pattern of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an FG Article 15 for multiple violations of the Uniform Code of Military Justice and a negative counseling statement for initiation of administrative separation action.

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 requests a change in the narrative reason for his discharge.  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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, for pattern of misconduct.  The regulation further stipulates that no deviation is authorized.  Further, 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.  

5.  The applicant contends he has proven to be an outstanding person after his discharge.  The applicant did not provide any examples of his post-service accomplishments for the board to consider.  Further, 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.  The Army Discharge Review Board is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings.  The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

6.  The records show the proper discharge and separation authority procedures were followed in this case.  

7.  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

Board Vote:
Character Change:  4	No Change:  1
Reason Change:	2	No Change:  3
(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 Authority for Separation:	NA
Change RE Code to:		No Change
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)		AR20130019730



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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