IN THE CASE OF:  	

      BOARD DATE:  	23 February 2015

      CASE NUMBER:  	AR20140019320
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing her testimony, and considering the Discussion and Recommendation which follows, the Board determined the 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 an upgrade of her discharge characterization from general, under honorable conditions to honorable and a change to her narrative reason for discharge.

2.  The applicant states, in effect, that she would like an upgrade of her discharge for the purpose of being able to reenlist or return as an officer to prove she has learned from her mistakes.  She contends that if she is given another chance, she will be among the best.  She now wants to move forward in having a military career.  She believes that as a result of her incidents of misconduct she was not treated fairly at the time of discharge nor was she able to explain her case to her chain of command or speak to an attorney.  She was poorly judged although she takes responsibility for her actions.  She did not receive a fair chance to show how great of a Soldier she really was and had potential to be.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 November 2014
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			10 May 2013
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			593rd CS Sustainment, JB Lewis-McChord, WA
f. Current Enlistment Date/Term:	25 April 2011, 4 years and 21 weeks
g. Current Enlistment Service:	2 years, 20 days
h. Total Service:			2 years, 20 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	42A10, Human Resources Specialist
m. GT Score:				85
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:		None
u. Prior Board Review:			No
SUMMARY OF SERVICE:

1.  The evidence contained in the applicant’s service record indicates on 7 March 2013, 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).  Specifically for the following offenses:

a. assaulting another Soldier, 

b. damaging the property of another Soldier (i.e., 37 inch Vizio flat screen TV) and unlawfully entering his barracks room, and 

c. being disrespectful to noncommissioned officers on multiple occasions and failing to report on occasions.

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

3.  On 13 March 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted a statement on her own 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 with a general, under honorable conditions discharge.

4.  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 10 May 2013, 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 a 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, imposed on 29 November 2011, failure to go at the time prescribed to her appointed place of duty (111013) and being disrespectful in language toward a noncommissioned officer (111013).  Punisment consisted of forfeiture of $383.00 pay per month for one month (suspended) and extra duty for 14 days (FG).  The record is void of any other non-judical punishment.

2.  A Military Police Report dated 28 January 2013, which indicates the applicant was the subject of investigation for damage to private property, unlawful entry, D-Cell Activation, and other family abuse.

3.  A Military Protective Order, dated 29 January 2013.

4.  Several negative counseling statement dated between 13 October 2011 and 31 January 2013, for substandard performance, direlection of duty, failure to report, personal issues, appearance, physical fitness, disrespect to a noncommissioned officer, disobeying an order while on extra duty, violating profile to get time off, altercation with gym staff, incident involving military police, assault, damage to private property, unlawful entry, and revocation of off-post pass privilages.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, dated 28 October 2014, a self-authored statement, four letters of support, sworn statement, developmental counseling forms (5), and military police report, dated 28 January 2013, to include statements (17 pages).

POST-SERVICE ACTIVITY: 

None provided by the applicant.

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 a SPD Code of "JKQ" will be assigned a RE Code of 3.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of her discharge and a change to her narrative reason for discharge was carefully considered.  However, after examining the applicant’s record of service, 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 her 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 her service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article15 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 narrative reason for discharge was noted; 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.  

5.  The applicant contends she was unfairly discharged and not given the opportunity to explain her case to her chain of command or speak to an attorney.  She believes she was poorly judged by her unit.  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.  

6.  Furthermore, there is no evidence in the record, nor has the applicant produced any evidence to support the contention that she was unfairly discharge.  In fact, the applicant’s Article 15 and numerous negative counseling statements justify discharge for misconduct.  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.  Further, the record shows the applicant was advised by consulting counsel on 13 March 2013, and that she submitted a statement on her own behalf which she apologized for her action and asked for a second chance.

8.  The applicant requests an upgrade of her discharge for the purpose of being able to rejoin the military.  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 a RE code of 3.  There are no basis upon which to grant a change to the reason or to the RE code.  A 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. 

9.  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.  The character of the applicant’s discharge is commensurate with her overall service record.

10.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief.



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Personal Appearance    Date:  23 February 2015    Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel: None

Witnesses/Observers: None


DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

The applicant submitted no additional documents, and presented no additional contentions.

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:			No
Change Characterization to:		No Change
Change Reason to:				No Change
Change Authority for Separation:		No Change
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)		AR20140019320



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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