1.	APPLICANT’S NAME:       

	a.	Application Date:   15 January 2015

	b.	Date Received:       30 March 2015

	c.	Counsel:                 Yes

2.   REQUEST, REASON, ISSUES, BOARD TYPE, AND DECISION:  The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade.  However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge.  The applicant requests a change to the narrative reason for separation. The applicant states through counsel, in effect, the circumstances which led to the unauthorized absences were beyond the applicant’s control and he was disproportionately punished.  His post service achievements warrant an upgrade under the equity standard.  A record review was conducted on 6 July 2012.  In a personal appearance hearing conducted at Arlington, Virginia, on 28 September 2015, and by a 5-0 vote, the Board denied the request finding the separation was both proper and equitable.

	(Board member names available upon request.)

3.	DISCHARGE DETAILS:

	a.	Reason/Authority/Codes/Characterization:  Misconduct (Serious Offense)/              AR 635-200, Paragraph 14-12c/JKQ/RE-3/Under Other Than Honorable Conditions

	b.	Date of Discharge:  14 August 2008

	c.	Separation Facts:  

		(1)	Date of Notification of Intent to Separate:  23 July 2008

		(2)	Basis for Separation:  The applicant was informed of the following reasons for his discharge; being convicted at a Summary Court-Martial for two violations of AWOL

		(3)	Recommended Characterization:  Under Other Than Honorable Conditions

		(4)	Legal Consultation Date:  Date NIF, the applicant consulted with legal counsel (although his election of rights indicate he waived legal counsel); he also unconditionally waived his right to an administrative separation board

		(5)	Administrative Separation Board:  None

		(6)	Separation Decision Date/Characterization:  5 August 2008/Under Other Than Honorable Conditions


4.	SERVICE DETAILS:

	a.	Date/Period of Enlistment:  29 June 2004/3 years/the available record did not contain an immediate reenlistment contract

	b.	Age at Enlistment/Education/GT Score:  24 years/GED Certificate/NIF

	c.	Highest Grade Achieved/MOS/Total Service:  SPC/E-4/11B1O, Infantryman/4 years, 9 months and 23 days
  
	d.	Prior Service/Characterizations:  ARNG (12 December 2002-27 July 2003)/NA
                                                                    IADT (28 July 2003-14 November 2003)/NIF
                                                                    ARNG (15 November 2003-28 June 2004)/HD
  
	e.	Overseas Service/Combat Service:  Germany/SWA/Afghanistan (26 July 2005-11 November 2006)
  
	f.	Awards and Decorations:  ARCOM-2, AAM, NDSM, ACM, GWOTSM, ASR, OSR, NATO MDL, CIB, EIB
  
	g.	Performance Ratings:  None
  
	h.	Disciplinary Action(s)/Evidentiary Record:  A Summary Court-Martial dated             22 July 2008, the applicant was found guilty of being AWOL x2 (6 August 2007-31 December 2007) and (8 February 2008-2 June 2008).  He was sentenced to reduction to PVT/E-1, forfeit $449 pay and hard labor without confinement for 45 days.

FG Article 15 dated 24 July 2007, for being AWOL x2 (16 August 2006-30 October 2006) and (6 February 2007-6 March 2007); reduction to PVT/E-1, forfeiture of $650 pay for one month, extra duty and restriction for 45 days.

The applicant received several negative counseling statements for various acts of misconduct.

	i.	Lost Time:  AWOL x3 for a total of 310 days; 51 days (5 February 2007-25 March 2007); 146 days (6 August 2007-30 December 2007); and 113 days (8 August 2008-1 June 2008), mode of return for all periods are unknown.
  
	j.	Diagnosed PTSD/TBI/Behavioral Health:  None

5.	APPLICANT-PROVIDED EVIDENCE:  DD Form 293

6.	POST SERVICE ACCOMPLISHMENTS:  None provided by the applicant

7.	REGULATORY CITATION(S):  Chapter 14 allows for separation for misconduct with paragraph 14-1 allowing for separating personnel because of minor disciplinary infractions; a pattern of misconduct; commission of serious offense; conviction by civil authorities; desertion; or absence without leave.  Paragraph 14-2 states action will be taken to separate a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him/her as a Soldier further effort is not likely to succeed; rehabilitation is impracticable or the Soldier is not amenable to rehabilitation.

Paragraph 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial.

8.	DISCUSSION OF ISSUE(S):  The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade.  However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge.  The applicant requests a change to the narrative reason for separation.  The applicant’s record of service and the issues submitted with his application were carefully reviewed.

The record confirms 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 received a Summary Court-Martial, Field Grade Article 15 and several negative counseling statements which marred the quality of his service.

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.

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, misconduct (serious offense).

The applicant seeks relief contending, the circumstances which led to his unauthorized absences were beyond the applicant’s control and he was disproportionately punished.  His post service achievements warrant an upgrade under the equity standard.  He had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.

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 applicant further contends his post service achievements warrant an upgrade under the equity standard.  The applicant did not submit any post service accomplishments.  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.

The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and the applicant was provided full administrative due process.


9.  DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

a.  Character Letters – 3 pages

b.  Medical Documents – 3 pages

10.  WITNESS(ES):  Yes

11.	BOARD ACTION DIRECTED:

	a.	Issue a new Discharge Order:  	No

	b.	Change Characterization to:  	No Change

	c.	Change Reason to:  			No Change

	d.	SPD/RE Code Change to:  		No Change

	e.	Restoration to Grade:  		NA


Authenticating Official:




COL, US ARMY
Presiding Officer 
Army Discharge Review Board
















Legend:
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  
FG - Field Grade	IADT – Initial Active Duty Training	RE - Reentry	                Honorable Conditions 	

ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE

AR20150005575

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