IN THE CASE OF: BOARD DATE: 11 September 2013 CASE NUMBER: AR20130006394 ___________________________________________________________________________ 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 to be 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 from general, under honorable conditions to honorable and a change to the narrative reason for his separation. 2. He states, in effect, that he was wrongfully accused of stealing $3,158.95 from the Credit First National Association. His name surfaced in a random CID investigation and he feels he did not receive a fair trial. He was punished because others were also punished for similar offenses. He has documents that show that he did not steal any money. He is currently trying to rejoin the Armed Forces but the discharge is preventing him from achieving his goal of continuing his career. He feels that he was discharged for just one offense. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 29 March 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 2 June 2011 d. Reason/Authority/SPD/RE: Misconduct (Serious Offense), AR 635-200, Chapter 14-12c, JKQ, RE-3 e. Unit of assignment: 570th Sapper Co, 14th EN Bn, Joint Base Lewis- McCord, WA f. Current Enlistment Date/Term: 2 October 2008, 5 years g. Current Enlistment Service: 2 years, 8 months, 1 day h. Total Service: 4 years, 8 months, 22 days i. Lost time: None j. Previous Discharges: RA (070223-081001), HD USAR (060911-070222), NIF k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 12B10, Combat Engineer m. GT Score: 80 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Iraq (081003-091003) q. Decorations/Awards: ARCOM, AAM-2, AGCM, NDSM, ICM-2, GWOTSM NPDR, ASR, OSR, MUC r. Administrative Separation Board: No s. Performance Ratings: Yes t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant's service record shows he served in the US Army Reserve between 2006 and 2007. On 23 February 2007 he joined the Regular Army and reenlisted on 2 October 2008 for a period of 5 years. He was 21 years old at the time and was a high school graduate. His record shows he received several awards including an ARCOM, 2 AAMs, and an AGCM. He served a combat tour in Iraq between 2008 and 2009. SEPARATION FACTS AND CIRCUMSTANCES 1. On 19 April 2011, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct, for the commission of a serious offense; specifically for attempted larceny of US currency in excess of $500, the property of Credit First National Association. 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and informed the applicant of his rights. 3. On 26 April 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement on his 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 of 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 under the provisions of AR 635-200, paragraph 14-12c, for the commission of a serious offense. 5. The applicant was separated from the Army on 2 June 2011, under Army Regulation 635-200, Chapter 14-12c, for misconduct (serious offense), with a general, under honorable conditions discharge, an SPD code of JKQ and an RE code of 3. 6. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Field Grade Article 15 imposed on 4 April 2011, for attempting to steal $3,158.95, the property of Credit First National Association (100818). His punishment consisted of reduction to the grade of E-4, forfeiture of pay in the amount of $1,115.00 per month for 2 months (suspended), and 45 days of extra duty. 2. Two negative counseling statements dated 7 March 2011 and 8 March 2011, for credit card fraud and flagging action due to an ongoing criminal investigation. 3. NCOER for the period of 1 January 2010 through 31 December 2010, he was rated as fully capable, 2/2. EVIDENCE SUBMITTED BY THE APPLICANT: A DD Form 149, a copy of the Trial Defense Services memorandum dated 30 March 2011, extract of loan history, Article 15, pay stub, and a list of bills. POST-SERVICE ACTIVITY: None provided 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 "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 an SPD Code of "JKQ" will be assigned an RE Code of 3. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of his discharge characterization and a change to the reason for his separation was carefully considered. However, after examining his military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or change the reason for his 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 serious misconduct, the applicant diminished the quality his service below that meriting an honorable discharge. The applicant’s service was marred by a FG Article 15 for a serious violation of the Uniform Code of Military Justice. 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 that he was wrongfully accused of stealing $3,158.95 from the Credit First National Association. 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 his 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 FG Article 15 justifies his discharge from the Army. The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence in support of his request for an upgrade of his discharge. He provided a copy of the same statement submitted by his counsel during the discharge proceedings. The record shows his chain of command considered this additional statement and elected to discharge him from the Army for the commission of a serious offense. The criminal investigation conducted by CID is not contained in the record. 5. 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. 6. The applicant contends the event that caused his discharge from the Army was an isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. 7. The applicant also requested a change to the reason for his discharge. 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 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. 8. The applicant desires to rejoin the Military Service. 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 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. 9. 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: 11 September 2013 Location: Washington, DC Did the Applicant Testify: No Counsel: None 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 RE Code to: No Change Grade Restoration to: NA Change Authority for Separation: No Change 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 UOTH - Under Other Than Honorable Conditions ADRB Case Report and Directive (cont) AR 20130006394 Page 2 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1