IN THE CASE OF:  	Mr. 

      BOARD DATE:  	9 June 2014

      CASE NUMBER:  	AR20140002342
___________________________________________________________________________

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 examiner’s Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s post service (i.e., public service of 10 years and his 9/11 support) and found his testimony to be creditable and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable.  The Board determined the reason for discharge 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 discharge from general, under honorable conditions to honorable, a change to his reentry eligibility (RE) code, and a change to his narrative reason for discharge.

2.  The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being able to reenlist and to seek a career in law enforcement/public service.  The applicant believes his request is justified due to the circumstances surrounding his separation and his public service since his separation.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 February 2014
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			13 October 1999
d. Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), Chapter 14, Paragraph
   14-12c, JKQ, RE-3
e. Unit of assignment:			HHC, USAG, Fort Wainwright, AK
f. Current Enlistment Date/Term:	12 March 1997, 4 years
g. Current Enlistment Service:	2 years, 7 months, 2 days
h. Total Service:			2 years, 7 months, 2 days
i. Time Lost:				None 
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	51M10, Firefighter
m. GT Score:				99
n. Education:				HS Graduate
o. Overseas Service:			Alaska
p. Combat Service:			None
q. Decorations/Awards:		ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			Yes
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 12 March 1997, for a period of 4 years.  He was 19 years old at the time of entry and a high school graduate.  He was serving at Fort Wainwright, AK when his discharge was initiated.  The record does not contain any evidence of acts of valor or meritorious achievements.  He completed 2 years, 7 months, and 2 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 25 August 1999, 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 of misconduct (serious offense) for committing assault consummated by a battery.

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

3.  On 27 August 1999, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted a statement on 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 13 September 1999, 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 13 October 1999, 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), with 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.  Summarized Record of Proceedings under Article 15, UCMJ, imposed on 12 May 1999, for treating a noncommissioned officer with disrespect in language (990416).  The punishment consisted of extra duty for 14 days (7 days suspended).

2.  Article 15, imposed on 16 August 1999, for unlawfully choking PFC A.A.W., with his hands (990624) and unlawfully enter the dwelling house of PFC A.A.W. (990624).  The punishment consisted of a reduction to the grade of E-2 (suspended), forfeiture of $200.00 per month for two months (one month suspended), and extra duty and restriction for 45 days (FG).

3.  Several negative counseling statements dated between 6 January 1998 and 24 June 1999, for allegedly assaulting PFC W., disrespect to a noncommissioned officer, hazing, failing to obey a direct order from a noncommissioned officer, failing to follow the chain of command and keeping his first line supervisor notified, provoking a co-worker, improper uniform, not being at his place of duty, missing PT formation, lack of motivation, and being absent from his place of duty.
EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a letter from his legal counsel, and a copy of his DD Form 214 for the period of service under review.

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 and a change to his narrative reason for discharge 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 his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by two Article 15s for multiple violations of the Uniform Code of Military Justice and several negative counseling statements.

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 also requested a change to his narrative reason for discharge.  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.  

5.  The applicant expressed his desire for an upgrade of his discharge for the purpose of being able to reenlist and to seek a career in law enforcement/public 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. 

6.  Furthermore, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

7.  Therefore, the reason for discharge and the characterization of service being 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, hearing his testimony and notwithstanding the examiner’s Discussion and Recommendation, the Board determined that the characterization of service was too harsh based on the applicant’s post service (i.e., public service of 10 years and his 9/11 support) and found his testimony to be creditable and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was proper and equitable and voted not to change it.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Personal Appearance      Date:  9 June 2014      Location: Washington, DC

Did the Applicant Testify?  Yes

Counsel: Crisp and Associates, LLC, Attn:  Mr. Owen J.L. Hoover, Esquire, 3540 North Progress Avenue, Suite 209, Harrisburg, PA  17110

Witnesses/Observers:  No

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:

	a.  Wife’s character reference letter – 1 page
	b.  Coworker character reference letter – 1 page
	c.  Associates degree – 1 page
	d.  Paramedic certificate – 1 page
	e.  Certificate of promotion to SPL NJ State Police – 2 pages

2.  The applicant presented the additional contention:

	a.  Change narrative reason to Miscellaneous reasons
	b.  Change RE code to 1.

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







Board Vote:
Character Change:  3	No Change:  2
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:			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)		AR20140002342



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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