IN THE CASE OF: Mr. BOARD DATE: 17 April 2013 CASE NUMBER: AR20120022566 ___________________________________________________________________________ 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 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 his discharge characterization from general, under honorable conditions to honorable and a change to the narrative reason for the discharge, and the SPD and RE codes. 2. The applicant states, in effect, that his discharge is unfair and improper based on his supporting documents and his self-authored statement as an honorable Soldier. The narrative reason for his involuntary discharge was not due to misconduct, but the pretext of negligence and unfairness that existed in his unit. The unit did not help him if, indeed, he had a problem. He was treated unfairly. He would like the narrative reason changed to unsatisfactory performance or uncharacterized. The unit showed no interest in counseling him, but an interest to get rid of him. His unit would not let him transfer to another unit. Another example his unit showed unfairness is when the unit clearly understood the snowball effect they initiate resulting in inequity and improper actions because he had overslept due to drinking alcohol the previous night. His unit refused to acknowledge that he had issues with alcohol and did not offer him alcohol rehabilitation. The applicant concludes with apologizing for his immaturity and lack of knowledge on the Army. The reason for his request to change the reentry code is outlined in depth in his self-authored statement. He understands that a serious offense leaves a very wide window for speculation—it is something that he does not want a potential recruiter or overseas contractor to assume mistakes that he was involved in over five years ago. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 10 December 2012 b. Discharge Received: General, Under Honorable Conditions (General) c. Date of Discharge: 21 November 2007 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 e. Unit of assignment: Forward Support Company, 4th Battalion, 101st Aviation Regiment, Fort Campbell, KY f. Current Enlistment Date/Term: 20 February 2007 / 3 years, 18 weeks g. Current Enlistment Service: 9 months, 6 days h. Total Service: 9 months, 6 days i. Time Lost: AWOL for 27 days total, all unknown mode of return: (070921-070923) for 3 days (071001-071004) for 4 days (071012-071031) for 20 days j. Previous Discharges: None k. Highest Grade Achieved: E-2 l. Military Occupational Specialty: 88M (Motor Transport Operator) m. GT Score: 102 n. Education: GED 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: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 20 February 2007, for a period of 3 years and 18 weeks. He was 25 years old at the time of entry and completed education through GED. He has not served in any overseas assignment. He has not earned any valor or achievement awards. He completed 9 months and 6 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 25 October 2007, 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 misconduct (serious offense). Specifically for the following offenses: a. absenting himself from his unit without authority (071001-071005) b. being convicted by a summary court-martial (071012), for six specifications of violating Article 86, UCMJ), three specifications of violating Article 90, UCMJ, and violating Article 91, UCMJ 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge. 3. On 1 November 2007, the applicant waived consultation with legal counsel and indicated he understood the impact of the discharge action, and did not submit 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 10 November 2007, 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 21 November 2007, 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), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 6. The applicant’s service record contains evidence of the following unauthorized absences and time lost for a total of 27 days: a. AWOL (070921-070923) for 3 days, unknown mode of return b. AWOL (071001-071004) for 4 days, unknown mode of return c. AWOL (071012-071031) for 20 days, unknown mode of return EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A Summary Court-Martial, dated 12 October 2007, AWOL (070921-070924), failed to go to his appointed place of duty x 5 (070917, 070914, 070913, 070911, 070910), disobeyed a superior commissioned officer x 3 (070918, 070920, 070921), assaulted an NCO (070921). The punishment consisted of reduction to the grade of E-1, forfeiture of $867, 25 days of confinement. 2. Nine negative counseling statements dated between 11 September 2007 and 19 October 2007 for being absent without authority, indebtedness, disobeying a superior commissioned officer, and numerous incidents of disobeying an NCO. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided DD Form 293, dated 12 January 2012, with a self-authored statement; his request for records from his AMHRR, undated; ERB, dated 15 November 2007; DD Form 214 and discharge orders for service under current review; two certificates of completing training; seven counseling statements, dated 21 August 2007, and 11, 12, 14, 17, 18, 19 September 2007; two sworn statements, dated 21 September 2007; document showing felony offenses, dated 16 May 1999; clothing transaction record, dated 7 November 2007; receipt acknowledging statement of clothing articles, dated 10 April 2006. POST-SERVICE ACTIVITY: The applicant provided none. 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. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge was 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 or any changes to 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 pattern of misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by a summary court-martial conviction for multiple violations of the Uniform Code of Military Justice and numerous 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 contends the discharge was unjust and improper, because his unit showed no propriety by not assisting or counseling him. 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. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discriminated. In fact, the applicant’s court-martial conviction and numerous negative counseling statements justify a pattern of 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 or to make any changes to the narrative reason and the reentry code for his discharge. 5. The applicant contends that he was young and immature at the time of the discharge. The record shows the applicant met entrance qualification standards to include age. There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. 6. The applicant further contends that he had issues with alcohol and his unit did not offer alcohol rehabilitation or an opportunity for a rehabilitation transfer. However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier. Further, AR 600-85, paragraph 3-8 entitled self-referrals, states the applicant could have self-referred to the Army Substance Abuse Program (ASAP) counseling center for assistance. In addition, after reviewing the applicant’s discharge packet, the separation authority properly waived the rehabilitative requirements. Moreover, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of a summary court-martial sentence. The applicant failed to respond appropriately to these efforts. 7. The applicant contends of that his pleas for fairness were ignored. However, 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 his overall service record. Accordingly, the records show the proper discharge and separation authority procedures were followed in this case. 8. The applicant contends the narrative reason for the discharge should be changed because his involuntary discharge was not due to misconduct and that it is unfair and improper. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general, under honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (serious offense)," and the separation code is "JKQ." 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 and separation code, entered in block 26 of the form, will be 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. 9. Furthermore, the applicant has also requested a change to the reentry code (RE) in order to rejoin the Service. However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge. Based on AR 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3. There are 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. 10. Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 17 April 2013 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA 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: N/A Change RE Code to: N/A Grade Restoration to: N/A Other: N/A 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) AR20120022566 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1