IN THE CASE OF:  	Mr. 

      BOARD DATE:  	5 May 2014

      CASE NUMBER:  	AR20140000067
___________________________________________________________________________

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 examiner’s 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, block 27 contains the erroneous reentry code of 4.    

3.  In view of the error, the Board directed an administrative correction to block 27 to read 
RE-3, as required by Army Regulations.  



      
      
      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 discharge from under other than honorable conditions to honorable, a change to the narrative reason for discharge and a change to his reentry eligibility (RE) code.

2.  The applicant states, in effect, that the evidence surrounding his discharge surely substantiates the negligence within his case and does not warrant the punishment he received.  The applicant contends his Summarized Court-Martial sentencing resulted in a reduction in rank, to include an under other than honorable discharge.  During his enlistment he received no negative counseling's and received only positive marks on evaluations from his superiors.  The isolated incident has no merit on the grounds of his discharge whereas the result by reduction in rank as it would seem was punishment enough.  He is aware that his actions were his own, but there was no formal counseling's or improper guidance offered from a legal perspective which leads him to believe he was coerced into the court-martial rather than fully investigating his case.  He respectfully requests an appeal to his discharge because there has been no pattern of misconduct and no proof to the contrary to present him as a Soldier unbecoming to the US Military. The honor in which he has served his country denotes his ambition for continuing to serve the United States Armed Forces.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		18 December 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			1 February 2013
d. Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), Chapter 14,								paragraph 14-12c, JKQ, RE-4
e. Unit of assignment:			543d QMSC, 548th CSSB (R) (P), Fort Drum, NY
f. Current Enlistment Date/Term:	9 August 2010, 3 years and 23 weeks
g. Current Enlistment Service:	2 years, 5 months, 23 days
h. Total Service:			2 years, 5 months, 23 days
i. Time Lost:				None 
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	92G10, Food Service Operation
m. GT Score:				94
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 9 August 2010, for a period of three years and     23 weeks.  He was 18 years old at the time of entry and a high school graduate.  His record documents no acts of valor or significant achievements.  He completed 2 years, 5 months and 23 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 10 October 2012, the applicant after examining the charges that were pending against him in a court-martial and after consulting with his defense counsel and being fully advised that he had a legal or moral right to plead not guilty and to place the burden of proving his guilt beyond a reasonable doubt upon the prosecution, offered to execute a Summary Courts Martial Right Notification/Waiver; plead guilty to specification 7 of charge I and specification of charge III and to waive his right to an administrative separation board in any future proceedings initiated to separate him for the conduct to which he was pleading guilty, even if it meant that he receive an UOTHC discharge.  

2.  In exchange for his action in paragraph 1, above, the convening authority agreed to refer the charges to a Summary Court Martial.

3.  The evidence contained in the applicant’s service record indicates that on 20 November 2012, 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) for committing an indecent act by having sexual intercourse while another Soldier was present in the same barracks room and doing so with a woman not his wife.

4.  Based on the above misconduct, the unit commander recommended an UOTHC discharge and advised the applicant of his rights.

5.  On 27 November 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board, and submitted a statement on his behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed action and recommended approval of the separation with an UOTHC discharge.  

6.  On 15 January 2013, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of UOTHC.

7.  The applicant was discharged from the Army on 1 February 2013, with a characterization of service of UOTHC under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and an RE code of 4. 

8.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Summary Court Martial, dated 26 October 2012, for wrongfully committing indecent conduct, to wit: penetrating the genital opening of SPC K.M.W with his penis and fingers and doing so while another Soldier SPC C.E.W., was present in the same room and wrongfully have sexual intercourse with SPC K.M.W., a woman not his wife, such conduct being prejudicial to good order and discipline in the armed forces and of a nature to being discredit upon the armed forces.  The punishment consisted of reduction to the grade of E-1.

2.  Four monthly performance counseling statements dated between December 2011 and November 2012 describing the applicant's monthly progress.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.  The applicant also indicated on his DD Form 293 in block 8 that he was submitting character letters and counseling statements; these documents were not attached to the applicant's application.

POST-SERVICE ACTIVITY: 

None were provide with the 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, 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.  The applicant’s request for an upgrade of the characterization of his discharge, a change to the narrative reason for discharge and a change to his reentry eligibility (RE) code were carefully considered.  However, after examining the applicant’s record of service, his military records, the documents and the 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 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 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 Summary Court-Martial for committing an indecent act of sexual intercourse and doing so with a woman, not his wife.

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 his misconduct was based on a single isolated incident.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  

5.  The applicant also contends there was no formal counseling and no proper guidance was offered from a legal perspective which leads him to believe he was coerced.  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 did not received proper guidance from a legal perspective.  In fact, the applicant indicated in his offer to plead guilty that he was satisfied with the advice of CPT M.M., his detailed defense counsel, who advised him of the meaning and effect of his guilty plea, and he understood the meaning and effect thereof; he understood the elements of the offenses to which he was pleading guilty to, and was pleading guilty voluntarily and because he believed he was guilty.  No person of persons had made any attempts to force or coerce him into making his offer to plead guilty.  

6.  The applicant also request his reason for discharge be changed.  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 misconduct (serious offense).  The regulation further stipulates that no deviation is authorized.  

7.  Additionally, the service record indicates that someone in the discharge process erroneously entered on the applicant's DD Form 214, block 27, reentry code as 4.  The discharge packet confirms the separation authority approved the discharge by reason of misconduct (serious offense).  AR 635-5-1, (Separation Program Designator Codes) and Cross Reference Table shows that a Soldier processed for misconduct (serious offense) will be assigned an SPD Code of JKQ and an RE Code of 3.  

8.  In view of the foregoing and notwithstanding the propriety of the discharge, recommend the Board change block 27, reentry code to 3, as approved by the separation authority.

9.  Except for the foregoing modification to the RE code, the narrative reason for discharge and the characterization of service are both proper and equitable.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Personal Appearance      Date:  5 May 2014       Location: Washington, DC

Did the Applicant Testify?  No

Counsel: None

Witnesses/Observers: NA

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:			No Change
Change Authority for Separation:	NA
Change RE Code to:		3
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)		AR20140000067



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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