IN THE CASE OF: Mr. BOARD DATE: 10 December 2014 CASE NUMBER: AR20140000180 ___________________________________________________________________________ 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 from general, under honorable conditions to honorable, and a change to the narrative reason for separation. 2. The applicant states, in effect, he was not discharged for a commission of a serious offense, but a totality of blotter reports, some were false and two infractions he was punished for, one was at another duty station. He feels it was unjust for his command to use information from prior periods of honorable service to characterize his service as general, under honorable conditions and there was no clear commission of a serious offense. He feels he was targeted and his discharge process took two years; his command initially tried a pattern of misconduct and it was returned to the unit for a lack of charges and counseling. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 24 December 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 19 April 2013 d. Reason/Authority/SPD/RE: Misconduct (Serious Offense), AR 635-200 Chapter 14, paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: HHC, 801st Brigade Support Battalion, 4th Brigade Combat Team, Fort Campbell, KY f. Current Enlistment Date/Term: 16 October 2010, Indefinite g. Current Enlistment Service: 2 year, 6 months, 4 days h. Total Service: 15 years, 7 months, 17 days i. Lost time: None j. Previous Discharges: RA (970903-000823)/HD RA (000824-020930)/HD RA (021001-031123)/HD RA (031124-070731)/HD RA (070801-101015)HD k. Highest Grade Achieved: E-6 l. Military Occupational Specialty: 92Y20, Unit Supply Specialist m. GT Score: 116 n. Education: Associate Degree o. Overseas Service: Germany/Southwest Asia p. Combat Service: Iraq (030304-040226)/Afghanistan (100730-110529) q. Decorations/Awards: ARCOM-3, AAM-2, AGCM-4, NDSM, ACM-W/CS ICM-W/CS, KCM, GWOTEM, GWOTSM, NPDR-2 ASR, OSR-3, NATO MDL-2 r. Administrative Separation Board: Yes s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 3 September 1997, for a period of 3 years. He was 22 years old at the time of entry with an associate degree. He was trained in and awarded military occupational specialty (MOS) 92Y20, Unit Supply Specialist. He reenlisted on 24 August 2000, for a period of 3 years and was 25 years old at the time. He reenlisted on 10 October 2002, for a period of 2 years and was 27 years old. He reenlisted on 24 November 2003, for a period of 5 years and was 29 years old. He reenlisted on 1 August 2007, for a period of 4 years and was 32 years old. His last reenlistment on 16 October 2010 was for an indefinite period and he was 35 years old. His record also shows he served two combat tours, earned several awards including an ARCOM-3, AAM-2, and an AGCM-4; he achieved the rank of SSG/E-6. He was serving at Fort Campbell, KY when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 4 September 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason of misconduct (serious offense). Specifically for the following offenses: a. failing to obey a lawful general order by wrongfully possessing alcohol in a combat zone, b. violating a lawful regulation by wrongfully having an inappropriate relationship with a junior enlisted Soldier, c. assaulting a child under the age of sixteen (120116), d. this separation is based in part on conduct from a prior enlistment, specifically; e. exceeding the posted speed limit and driving while intoxicated (100417), f. driving while his license was suspended or revoked (100225), g. assaulting a child under the age of sixteen (090312), h. simple assault (080108), i. driving while intoxicated (061008), j. titled with spousal abuse, obstruction of justice, failing to obey a lawful order, and wrongfully damaging government property (061126), and k. domestic assault (060314). 2. This conduct is included in the separation action pursuant to paragraph 1-15d, AR 635-200 and will only be considered on the issue of retention or separation and will not be considered on the issue of characterization of service IAW paragraph 3-8b, AR 635-200. 3. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 4. On 24 October 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board, 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 and senior commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge. 5. On 13 November 2012, the applicant was notified to appear before an administrative separation board and advised of his rights. 6. On 30 November 2012, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant’s discharge with a characterization of service of general, under honorable conditions. Also, misconduct from a prior period of honorable service is included in the separation action pursuant to paragraph 1-15d, AR 635-200 and was only considered on the issue of retention or separation and was not considered on the issue of characterization of service IAW paragraph 3-8b, AR 635-200. 7. On 13 February 2013, the separation authority approved the findings and recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 8. The applicant was discharged from the Army on 19 April 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 an RE code of 3. 9. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A Summary Court-Martial, dated 13 May 2011, for failing to obey a lawful order, failing to obey a lawful general regulation and dereliction of duty. He was sentenced to a reduction to E-5 and forfeiture of $1,691 pay. However, this document is not contained in the available record, see unit commander’s recommendation memorandum. 2. An administrative General Officer Memorandum of Reprimand (GOMOR), with associated law enforcement documents dated 22 May 2007, for driving while intoxicated. 3. The applicant received two negative counseling statements, dated 14 February 2012 and 5 March 2013, for initiation of separation action and being indebted to the government. 4. He received an NCOER covering the period from 11 December 2010 through 31 October 2011, with a marginal rating and a report covering the period from 1 November 2011 through 31 October 2012, he was rated fully capable. 5. The record indicates there were nine Military Police Reports, dated 16 January 2012, 4 January 2011, 17 April 2010, 25 February 2010, 12 March 2009, 8 January 2008, 8 October 2006, 26 November 2006, and 14 March 2006. However, these documents are not contained in the available record, see unit commander’s recommendation memorandum. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, e-mail traffic, congressional inquiry (five pages), memorandum, administrative separation (two pages), administrative separation board proceedings (26 pages), 13 letters of recommendation/character statements, and three NCOERs. POST-SERVICE ACTIVITY: The applicant stated he is a full time student in college with a 3.5 grade point average. 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, paragraph 14-12c, 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 a RE Code of 3. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge and a change to the narrative reason for his discharge was carefully considered. However, after examining the applicant’s record of service, 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 a change to the narrative reason for separation. 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 misconduct (serious offense), the applicant diminished the quality his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by Summary Court-Martial, a GOMOR, two negative counseling statements, and numerous Military Police Reports. 3. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance. 4. The applicant requested a change to the narrative reason for separation. 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 he was not discharged for a commission of a serious offense, but a totality of blotter reports, some were false and two infractions he was punished for, one was at another duty station. 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 he was not discharged for commission of a serious offense. 6. The applicant further contends his discharge was unjust for his command to use information from prior periods of honorable service to characterize his service as general, under honorable conditions and there was no clear commission of a serious offense. AR 635-200 provides that commanders may consider incidents from a prior period of enlistment on the issue of retention or separation. The unit commander’s notification memorandum indicated misconduct from prior periods of honorable service which was included in the separation action pursuant to paragraph 1-15d, AR 635-200 and will only be considered on the issue of retention or separation and would not be considered on the issue of characterization of service. 7. Further, the presumption of government regularity prevails in the discharge process, as the separation authority cannot consider information from prior periods of honorable service when determining the characterization of service and there is no affirmative indication the separation authority did so. 8. The applicant also contends he feels he was targeted and his discharge process took two years; his command initially tried a pattern of misconduct and it was returned to the unit for lack of charges and counseling. 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. 9. The records show the proper discharge and separation authority procedures were followed in this case. 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: 10 December 2014 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: NA Change RE Code to: NA 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) AR20140000180 Page 7 of 8 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1