IN THE CASE OF: Mr. BOARD DATE: 17 April 2015 CASE NUMBER: AR20140004790 ___________________________________________________________________________ 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 to upgrade the characterization of his service from general, under honorable conditions to fully honorable, and to change the narrative reason for his discharge. 2. The applicant states, in effect, no offense was committed. He was never charged with any offense, only accused of an offense. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 10 March 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 17 January 2013 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200, Paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: A Co, 1st Bn, 66th Armor Regiment, 1st BCT, 4th Infantry Division (Mechanized), Fort Carson, Co f. Current Enlistment Date/Term: 10 August 2009, 4 years, 16 weeks g. Current Enlistment Service: 3 years, 5 months, 8 days h. Total Service: 3 years, 5 months, 8 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 11B10, Infantryman m. GT Score: 121 n. Education: HS Graduate o. Overseas Service: SWA p. Combat Service: Afghanistan (100803-110616) q. Decorations/Awards: ARCOM; NDSM; ACM-2CS; GWOTSM; ASR: OSR; NATO MDL; CIB r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 10 August 2009, for a period of 4 years and 16 weeks. He was 18 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman. He served in Afghanistan. He earned an ARCOM. He completed 3 years, 5 months, and 8 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The applicant’s service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army. However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature, and the applicant’s submitted evidence includes a copy of his separation packet which provides the following: a. On 20 December 2012 (as acknowledged by the applicant), 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 committing sexual assault upon a female Service Member (120611). Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. b. On 20 December 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action and elected to submit a statement on his own behalf (NIF). 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. c. On 8 January 2013, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 2. The DD Form 214 indicates that on 17 January 2013, the applicant was discharged under the provisions of Chapter 14, AR 635-200, for misconduct (serious offense), with a characterization of service of general, under honorable conditions. The DD Form 214 also shows a Separation Program Designator (SPD) code of JKQ and a reentry (RE) code of 3. 3. The applicant’s available record does not show any recorded actions under the UCMJ, unauthorized absences or time lost. 4. On 10 January 2013, HQDA, Installation Management Command, USAG, Fort Carson, CO, Orders Number 010-0028, discharged the applicant from the Army, effective 17 January 2013. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. There are no negative counseling statements. 2. Discharge Orders. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 214 for service under current review; separation decision memoranda; Reports of Medical Examination, History, and Assessment dated 29 November 2011 and 23 October 2012; Report of Mental Status Evaluation, dated 30 November 2012; Statement for Enlistment, dated 11 May 2009; counseling statement, dated 4 December 2012; CID report with medical records (emergency/urgent care) of Ms. B, dated 1 August 2012, which reports the applicant was the subject of an investigation for aggravated sexual assault; and CID report, dated 28 March 2012, which reports the applicant was the subject of an investigation for assault in the first degree. 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. 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 an RE Code of 3. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge and to change the narrative reason for his discharge was carefully considered. However, after examining the applicant’s record of service, his military records, and the documents and issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or to change the narrative reason for his discharge. 2. The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was digitally authenticated by the applicant's signature. This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process. However, the applicant’s submitted evidence 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 incident of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge. 3. The DD Form 214 also indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c by reason of misconduct (serious offense), with a characterization of service of general, under honorable conditions. Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 4. 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. 5. The applicant contends the discharge was unjust because there was no offense committed as he was never charged with any offense, only accused. 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 issues. There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discriminated. 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. The rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record that he submitted and can only be viewed as speculative in nature. 6. The applicant contends the narrative reason for the discharge should be changed. 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. 7. Therefore, based on the available evidence and the government presumption of regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 17 April 2015 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) AR20140004790 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1