IN THE CASE OF: Mr. BOARD DATE: 11 February 2015 CASE NUMBER: AR20140003097 ___________________________________________________________________________ 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 through counsel, in effect, his discharge was unjust and inequitable because the government used misconduct from over two years earlier to separate him. His awards and decorations are not annotated in block 13 on his DD Form 214. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 14 February 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 2 April 2003 d. Reason/Authority/SPD/RE Code: Misconduct , AR 635-200, Chapter 14, paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: B Battery 1-38th Field Artillery Battalion, 2nd Infantry Division, Korea f. Current Enlistment Date/Term: 6 June 2000, 4 years/block 12a on the DD Form 214 date entered active duty, is incorrect and should read (000522); see enlistment contract g. Current Enlistment Service: 2 years, 9 months, 12 days h. Total Service: 2 years, 9 months, 12 days i. Time Lost: 15 days j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 13M10, MLRS Crewmember m. GT Score: 121 n. Education: GED Certificate o. Overseas Service: Korea p. Combat Service: None q. Decorations/Awards: AAM-2, NDSM, KDSM, ASR, OSR r. Administrative Separation Board: No s. Performance Ratings: No t. Counseling Statements: No u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 22 May 2000, for a period of 4 years. He was 20 years old at the time of entry with a GED Certificate. He was trained in and awarded military occupational specialty (MOS) 13M10, MLRS Crewmember. He earned two AAMs and achieved the rank of SPC/E-4. He was serving in Korea when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 19 March 2003, 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 of misconduct-commission of a serious offense for being AWOL (001108-001122). 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. 3. The applicant’s election of rights is not contained in the available records and government regularity is presumed in the discharge process. 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 24 March 2003, 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 2 April 2003, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct, with a Separation Program Designator code (SPD) of JKQ and a reentry code of 3. 6. The applicant’s record of service indicates 15 days of time lost for being AWOL from 8 November 2000 until 22 November 2000; his mode of return is unknown. 7. The record did not contain any negative counseling statements. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. An Article 15, dated November 2000, for being AWOL (001108-001122); the punishment consisted of extra duty and restriction for 13 days, (FG). However, the Article 15 is not contained in the available record; see unit commander’s recommendation memorandum. 2. Letter, Subject of Investigation, undated (three pages), indicating concerns from his security questionnaire. 3. Memorandum, US Army Central Personnel Security Clearance Facility, dated 16 July 2002 indicating the applicant was denied a security clearance. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293/with attorney’s brief (nine pages), attorney’s letter (two pages), self-authored statement, peace officer appointment, peace officer training certificate, security clearance verification memorandum, marriage certificate, credit score, associate’s degree certificate, resume (four pages), DD Form 214, and Chapter 14 discharge packet (eight pages), an intent to deny security clearance memorandum (two pages), and a denial of security clearance memorandum/with reasons (five pages). POST-SERVICE ACTIVITY: The applicant provided documentation which shows he is employed as a security police/civilian guard, GS-06; and he earned an associate’s degree. 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. 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. ANALYST’S DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge and a change of the narrative reason for separation was carefully considered. However, after examining his military record, 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 of 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, the applicant diminished the quality his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by an Article 15, and security clearance denial. 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 requested a change to the narrative reason for separation. 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. The regulation further stipulates that no deviation is authorized. 5. The applicant contends his discharge was unjust and inequitable because the government used misconduct from over two years earlier to separate him. The evidence of record shows the applicant was discharged for being AWOL (001108-001122). The applicant believes he was discharged because he was denied a security clearance; however, this was not the reason for discharge nor was it mentioned in the notification letter as a reason for the discharge. 6. Further, 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. 7. Also, 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 contention. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged. 8. The applicant’s awards and decorations are not annotated on his DD Form 214; this issue does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. 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, the analyst recommends the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 11 February 2015 Location: Washington, DC Did the Applicant Testify: NA Counsel: Yes [redacted] 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) AR20140003097 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1