IN THE CASE OF:  	Mr.

      BOARD DATE:  	28 March 2014

      CASE NUMBER:  	AR20140003197
___________________________________________________________________________

Board Determination and Directed Action

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 narrative reason for discharge was both proper and equitable and voted to deny relief.




      
      
      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 a change to the narrative reason for separation to include reentry eligibility (RE) code.

2.  He states, in effect, during the separation process his chain of command told him he would be able to finish his Army career; however, he was unable to complete his term.  His discharge was unjust.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		24 February 2014
b. Discharge Received:		Honorable
c. Date of Discharge:			23 March 2012
d. Reason/Authority/SPD/RE:		Misconduct (Civil Conviction), AR 635-200, 							Chapter 14, Section II, JKB, RE-3
e. Unit of assignment:			HHD, United Nations Command Security Battalion-, 						Joint Security Area, 2nd Infantry Division, APO AE 						96205
f. Current Enlistment Date/Term:	11 May 2010, 3 years
g. Current Enlistment Service:	1 year, 10 months, 13 days
h. Total Service:			6 years, 17 days
i. Lost time:				None
j. Previous Discharges:		RA-(060306-071113)/HD										RA (071114-090306)/HD										RA (090307-100510)/HD
k. Highest Grade Achieved:		E-6	
l. Military Occupational Specialty:	11B30, Infantryman
m. GT Score:				111
n. Education:				GED Certificate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (070406-080602)
q. Decorations/Awards:		ARCOM, AAM-3, AGCM, NDSM, GWOTEM, 							GWOTSM, KDSM, HSM, MOVSM, NPDR, ASR, 						OSR, CIB, JMUA
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant's record shows he enlisted in the Regular Army on 6 March 2006, for a period of 3 years and 16 weeks.  He was 21 years old at the time of entry with a GED Certificate.  He was trained in and awarded military occupational specialty (MOS) 11B30, Infantryman.  He reenlisted on 14 November 2007, for 3 years and he was 23 years old at the time.  His last reenlistment on 11 May 2010 was for 3 years and he was 25 years old at the time.  His record also shows he served a combat tour, earned several awards including an ARCOM, AAM-3, AGCM, and a CIB; and he achieved the rank of SSG/E-6.  He was serving in Korea when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence contained in the applicant’s service record indicates that on 30 January 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-9, AR 635-200, by reason of misconduct (civil conviction) for being administered a breathalyzer test and registering a blood alcohol content of 0.122%, which was over the 0.05% blood alcohol content under Korean law; being found guilty of DUI under Korean Law and sentenced to a fine of W2,000,000 by the Uijeongbu District Court (110608).

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

3.  On 31 January 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, even though the applicant had completed more than 6 years of service, he was not entitled to an administrative separation board because he received an honorable characterization of service, and he did not submit a statement on his behalf.  The unit commander subsequently recommended the applicant be retained in the Army.  The intermediate commander reviewed the proposed action and recommended the applicant be retained in the Army.  The senior commander reviewed the proposed action and recommended approval with an honorable discharge.

4.  On 23 February 2012, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of honorable.

5.  The applicant was discharged from the Army on 23 March 2012, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, Section II, AR 635-200, for misconduct (civil conviction), a Separation Program Designator code (SPD) of JKB and an RE code of 3. 

6.  The applicant’s service record does not contain any documented evidence of unauthorized absences, time lost or any recorded actions under the Uniform Code of Military of Military Justice (UCMJ).


EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains an NCOER covering the period of 30 May 2010 2010 through 29 May 2011, which the applicant was rated “Among the Best,” 1/1, successful/superior.

2.  He received a negative counseling statement, dated 9 June 2011 for driving under the influence of alcohol.

3.  The record of evidence contains an administrative General Officer Memorandum of Reprimand (GOMOR), dated 7 July 2011, for driving under the influence of alcohol.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided an online application, Letter, Department of Veterans Affairs, eligibility percentage, DD Form 214; and Discharge Orders 059-0001.

POST-SERVICE ACTIVITY:

The applicant did not provide any 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 "JKB" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, Section II, misconduct (civil conviction).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKB" will be assigned an RE Code of 3.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for a change to the narrative reason for separation to include the RE code was carefully considered.  However, after examining his military record, the issues and documents submitted with the application, there are insufficient mitigating factors to merit a change to the narrative reason for separation to include the RE code.

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.  The applicant’s record of service was marred by a negative counseling statement, and a GOMOR.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.

4.  The applicant requested a change to the narrative reason for separation to include RE code.  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 "JKB" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, Section II, for misconduct (civil conviction).  The regulation further stipulates that no deviation is authorized.  

5.  Further, the SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKB" will be 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.

6.  The applicant contends during the separation process his chain of command told him he would be able to finish his Army career; however, he was unable to complete his term.  AR 635-200, Chapter 2, paragraph 2-2 states, the separation authority is not bound by the recommendations of the initiating or intermediate commander and has complete discretion to direct any type of discharge and characterization of service authorized by applicable provisions of this regulation. 

7.  The applicant further contends his discharge was unjust.  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 contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention he was unjustly discharged.

8.  Further, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial.

9.  Also, 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.

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

11.  Therefore, the reason for narrative reason for discharge to include the RE code being both proper and equitable, recommend the Board deny relief. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review         Date:  28 March 2014         Location:  Washington, DC

Did the Applicant Testify:  NA

Counsel:  None

Witnesses/Observers:  NA

Board Vote:
Character  	Change:  NA	No Change:  NA
Reason	Change:  0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		No
Change Characterization to:	NA
Change Reason to:			No Change
Change RE Code to:		NA
Grade Restoration to:		NA
Change Authority for Separation:	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)		AR20140003197



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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