IN THE CASE OF: BOARD DATE: 17 November 2014 CASE NUMBER: AR20140005022 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony, 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 and his reentry code. 2. The applicant states, in pertinent part and in effect, his discharge is improper because his post-service legal matters were dismissed and he had no other criminal matters. He has paid his debt to society, matured, earned a college degree, purchased his first home, and earned a trusted position as a clerk of the court with a state judiciary, assigned to a judge's chambers. He would like to reenlist. He is embarrassed about his past and would like an opportunity to earn his redemption. He humbly asks to allow him to serve his family, friends, country, and democracy honorably. He is willing to abide by any request that may help create a favorable outcome. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 19 March 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 30 July 2002 d. Reason/Authority/SPD/RE Code: Misconduct, AR 635-200, Paragraph 14-12b, JKA RE-3 e. Unit of assignment: 555th Maint Co, 2nd Bn, 43rd ADA, 108th ADA Bde Fort Bliss, TX f. Current Enlistment Date/Term: 8 March 2001, 4 years g. Current Enlistment Service: 1 year, 4 months, 11 days h. Total Service: 1 year, 4 months, 11 days i. Time Lost: 12 days j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 35F10, Special Electrical Devices Repairer m. GT Score: 119 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: Yes SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 8 March 2001, for a period of 4 years. 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) 35F10, Special Electrical Devices Repairer. His record documents no acts of valor or significant achievement. He completed 1 year, 4 months, and 11 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 17 July 2002, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of a pattern of misconduct, specifically for receiving a CG Article 15 for failing to report for duty and for having numerous negative counseling statements for his behavior. 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge. 3. On 17 July 2002, the applicant consulted with legal counsel, was advised of 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 18 July 2002, 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 30 July 2002, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, a Separation Program Designator code (SPD) of JKA, and an RE code of 3. 6. The applicant's record shows a time lost of 12 days during the period 19 July 2002 through 30 July 2002, due to civilian confinement. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Article 15, dated 5 April 2002, for failing to be at his appointed place of duty at the prescribed time (020322) and being disrespectful in language and deportment toward an NCO (020328). The punishment consisted of a reduction to the grade of E-2, forfeiture of $289 (suspended), and 14 days of extra duty, (CG). 2. Eight negative counseling statements, dated between 8 January 2002 and 28 March 2002, for being disrespectful in language and deportment toward an NCO; disobeying NCO orders; failing to be at his appointed place of duty at the prescribed time; having alcohol on his breath; not shaving and receiving a speeding ticket. 3. DA Form 4187, Personnel Actions, dated 30 July 2002, indicates the applicant’s duty status changed from PDY to CCA, effective 19 July 2002, due to being apprehended by civil authorities and confined while awaiting arraignment. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided DD Form 214 for service under current review; a district court order terminating probation, dated 17 May 2007; associate’s degree certificate, dated May 2008; property deed, dated 2 December 2009; and state employment oath. POST-SERVICE ACTIVITY: The applicant states, in effect, he has paid his debt to society, matured, earned a college degree, purchased his first home, and earned a trusted position as a clerk of the court with a state judiciary assigned to a judge's chambers. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, pattern of misconduct. 5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" 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 and reentry 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 and reentry 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 pattern of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by an Article 15 for violations of the Uniform Code of Military Justice and numerous 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 that since leaving the Army, his post-service legal matters were dismissed and he has paid his debt to society, matured, earned a college degree, purchased his first home, and earned a trusted position as a clerk of the court with a state judiciary and assigned to a judge's chambers. The applicant’s post-service accomplishments have been noted as outlined on the application and in the documents with the application. However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted. 5. The applicant contends the narrative reason for the discharge should be changed. However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general, under honorable conditions discharge. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," and the separation code is "JKA." 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. 6. 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 is 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. 7. 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. 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: Personal Appearance Date: 17 November 2014 Location: Washington, DC Did the Applicant Testify? Yes Counsel: None Witnesses/Observers: Yes DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional documents: a. Certificate of Achievement - 1st Basic Combat Training Brigade b. Certificate of Achievement - “I Best the Command Sergeant Major” Annual Run c. Certificate of Achievement - 73d Ordnance Battalion Iron Cobra Award (Sept 2001) d. Certificate of Achievement - 73d Ordnance Battalion Iron Cobra Award (Oct 2001) e. Certificate of Achievement - Headquarters, 73d Ordnance Battalion (Oct 2001) f. Certificate of Appreciation - Academy of Richmond County g. Certificate of Participation - Berkeley College (May 2007) h. Certificate of Participation - Berkeley College (May 2008) i. Superior Court of New Jersey Probation Division Letter, dated 2 Aug 2005 j. State of Texas v. CC, Order Terminating Probation, dated 17 May 2007 k. Bergen Community College Associate in Applied Science Degree, dated May 2008 l. Deed between a “Holdings LLC” and CC, dated 2 Dec 2009 m. State of New Jersey, County of Passaic document, dated 27 Aug 2010 n. Legal Sea Foods “We Pledge” Certificate, dated 23 Oct 2010 o. Character Reference Letter from CC, dated 28 Apr 2014 In addition to the evidence in the record, the Board carefully considered the additional documents, and testimony, presented by the applicant at the personal appearance hearing. Board Vote: Character Change: 1 No Change: 4 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: No Change Change RE Code to: No Change 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) AR20140005022 Page 2 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1