Applicant Name: ????? Application Receipt Date: 2011/08/08 Prior Review: Prior Review Date: NA I. Applicant Request: Upgrade Reason Change RE Code Change Issues: The applicant states, in effect, that he was told by his 1SG and commander to divorce his wife so that he could stay in the Army or be kicked out of the Army. When he said he wouldn't do it; he was chaptered. He was never found guilty for anything and never went to court. When he saw a lawyer on base there was no notification of his chapter papers and he was discharged on 22 December, but the papers wasn't done so he was allowed to leave on December 26 and was chaptered out via proxy. After he left the DD Form 214 was mailed to him and it had the misconduct-serious offense remark on the DD Form 214. The misconduct notation is preventing him from finding jobs because the people think he is trouble. II. Were Proper Discharge and Separation Authority procedures followed? Tender Offer: NA See Attachments: Legal Medical Minority Opinion Exhibits III. Discharge Under Review Unit CDR Recommended Discharge: Date: 101201 Discharge Received: Date: 101221 Chapter: 14-12c AR: 635-200 Reason: Misconduct (Serious Offense) RE: SPD: JKQ Unit/Location: HQ & HQ Company, 1st Battalion, 12th Cavalry Regiment, 3rd Brigade Combat Team, 1st Cavalry Division, Fort Hood, TX Time Lost: None Article 15s (Charges/Dates/Punishment): None Courts-Martial (Charges/Dates/Punishment): None Counseling Records Available: Yes No IV. Soldier’s Overall Record Age at current enlistment: 23 Current ENL Date: 100407 Current ENL Term: 3 Years 18 weeks Current ENL Service: 0 Yrs, 8 Mos, 15 Days ????? Total Service: 0 Yrs, 8 Mos, 15 Days ????? Previous Discharges: None Highest Grade: E-3 Performance Ratings Available: Yes No MOS: 19D10 Cavalry Scout GT: NIF EDU: HS Grad Overseas: None Combat: None Decorations/Awards: NDSM, ASR V. Post-Discharge Activity City, State: ????? Post Service Accomplishments: None submitted by the applicant. VI. Facts, Circumstances, and Legal Basis for Separation a. Facts and Circumstances: The evidence of record shows that on 1 December 2010, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14-12c, AR 635-200, by reason of misconduct-commission of a serious offense; in that he was apprehended for wrongfully assaulting his spouse by grabbing her ankle, pulling her off a couch and dragging her across the floor (101002). The unit commander recommended separation with a general, under honorable conditions discharge. He was advised of his rights. On 6 December 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service no less favorable than a general, under honorable conditions discharge and did not submit a statement in his own behalf. The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge. On 6 December 2010, the separation authority waived further rehabilitative efforts and directed that the applicant be discharged with a characterization of service of general, under honorable conditions. b. Legal Basis for Separation: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of this regulation 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 absence 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. c. Response to Issues, Recommendation and Rationale: After a careful review of all the applicant’s military records, and the issue submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge. The analyst determined 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. By the misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge. 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. The analyst noted the applicant's issue that he was told by his 1SG and commander to divorce his wife so that he could stay in the Army or be kicked out of the Army. When he said he wouldn't do it; he was chaptered. He was never found guilty for anything and never went to court. The analyst found no evidence of arbitrary or capricious actions by the command. The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, before initiating action to separate the applicant, the command ensured the applicant was appropriately counseled about the misconduct, which could lead to separation. The analyst noted the command made an assessment of the applicant's potential for becoming a fully satisfactory soldier. As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service. The applicant further contends that when he saw a lawyer on base there was no notification of his chapter papers and he was discharged on 22 December 2010, but the papers wasn't done so he was allowed to leave on 26 December 2010 and was chaptered out via proxy. The evidence of record shows that the applicant consulted with legal counsel and was advised of his rights on 6 December 2010 and authenticated the document with his signature. The applicant was subsequently discharged on 21 December 2010. The applicant request that his narrative reason for discharge be changed because it is preventing him from getting a job. The narrative reason for separation is governed by specific directives. The applicant was discharged under the provisions of Chapter 14, paragraph 14-12c, AR 635-200. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)", the separation code is "JKQ", and the reentry code is "RE 3". Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28, separation code, entered in block 26, and RE Code, entered in block 27 of the form, will be entered exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. Additionally, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities. Therefore, the analyst determined that the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. VII. Summary of Army Discharge Review Board Hearing Type of Hearing: Date: 24 February 2012 Location: Washington, DC Did the Applicant Testify? Yes No Counsel: None Witnesses/Observers: NA Exhibits Submitted: DD Form 293 dated 25 July 2011. VIII. Board Discussion, Determination, and Recommendation After carefully examining the applicant’s record of service during the period of enlistment under review and considering the analyst’s recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief. IX. Board Decision Board Vote: Character - Change 0 No change 5 Reason - Change 0 No change 5 (Board member names available upon request) X. Board Action Directed Issue a new DD Form 214 Change Characterization to: Change Reason to: No Change Other: No Change RE Code: Grade Restoration: No Yes Grade: No Change XI. Certification Signature Approval Authority: EDGAR J. YANGER Colonel, U.S. Army President, Army Discharge Review Board BONITA E. TROTMAN Lieutenant Colonel, U. S. Army Secretary Recorder Legend: AWOL Absent Without Leave GCM General Court Martial NA Not applicable SCM Summary Court Martial BCD Bad Conduct Discharge GD General Discharge NIF Not in the file SPCM Special Court Martial CG Company Grade Article 15 HD Honorable Discharge OAD Ordered to Active Duty UNC Uncharacterized Discharge DD Dishonorable Discharge HS High School Graduate OMPF Official Military Personnel File UOTH Under Other Than Honorable FG Field Grade Article 15 IADT Initial Active Duty Training RE Reentry Code Conditions ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE Case Number AR20110016544 ______________________________________________________________________________ Page 1 of 4 pages