IN THE CASE OF: Mr. BOARD DATE: 16 April 2014 CASE NUMBER: AR20140005490 ___________________________________________________________________________ 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, his discharge was unfair simply because the CID did not investigate. Sworn statements were obtained from Soldiers who were not present at the incident and did not know him personally. He had no pattern of misconduct or misbehavior. He always performed above and beyond all standards set before him. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 1 July 2013 b. Discharge Received: General, Under Honorable conditions c. Date of Discharge: 15 August 2012 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200 Paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: F Co, 5th Bn, 52nd ADA, Fort Bliss, TX f. Current Enlistment Date/Term: 14 October 2010, 4 years g. Current Enlistment Service: 1 year, 10 months, 2 days h. Total Service: 4 years, 9 months, 2 days i. Time Lost: None j. Previous Discharges: RA (071114-101013) / RA k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 92A10, Automated Logistical Specialist m. GT Score: NIF n. Education: GED o. Overseas Service: SWA p. Combat Service: Iraq (081117-091116) q. Decorations/Awards: ARCOM; AAM; NDSM; ICM-2CS; GWOTSM; ASR OSR-2 r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 14 November 2007, and reenlisted on 14 October 2010, for a period of 4 years. He was 18 years old at the time of entry and had a high school equivalency (GED). He was trained in and awarded military occupational specialty (MOS) 92A10, Automated Logistical Specialist. He served in Iraq. He earned an ARCOM and an AAM awards. He completed 4 years, 9 months, and 2 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 digitally authenticated by the applicant’s signature. 2. The DD Form 214 indicates that on 15 August 2012, 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. However, he was separated as a PV1/E-1 and the action that caused his reduction is not contained in the service record. 4. On 13 August 2012, HQDA, 1st Armored Division and Fort Bliss, Fort Bliss, TX, Orders Number 226-0026, amended by Orders 228-0224, dated 15 August 2012, discharged the applicant from the Army effective 15 August 2012. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. There are no counseling statements or UCMJ actions in the record. 2. DA Form 1059, Service School Academic Evaluation Report, dated 13 September 2011, indicates the applicant exceeded the course standards of the Automated Logistical Specialist Course. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided five DA Forms 4856, Developmental Counseling Forms, dated between 27 January 2012 and 31 May 2012. 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, 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 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 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. 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's contentions that his discharge was unfair simply because the CID did not investigate; sworn statements were obtained from Soldiers who were not present at the incident and who did not know him personally; he had no pattern of misconduct or misbehavior; that he always performed above and beyond all standards set before him, were carefully considered. However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service. Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted. The applicant’s statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. 5. If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record. 6. The applicant contends the narrative reason for the discharge should be changed because his discharge was unfair. 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: 16 April 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) AR20140005490 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1