IN THE CASE OF: BOARD DATE: 15 May 2015 CASE NUMBER: AR20140009151 ___________________________________________________________________________ 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 characterization from general, under honorable conditions to honorable. 2. The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being eligible for some veteran benefits and maybe one day being able to reenlist in the military. He contends his discharge is improper because the civilian convictions crimes used to discharge him accrued prior to his enlistment. At no time did he commit any misconduct while on active duty. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 27 May 2014 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 7 June 2012 d. Reason/Authority/SPD/RE: Misconduct (Civil Conviction), AR 635-200, Chapter 14, Sec II, JKB, RE-3 e. Unit of assignment: B Co, 507th IN Bn, 1st ABN, Fort Benning, GA f. Current Enlistment Date/Term: 21 April 2009, 3 years and 19 weeks g. Current Enlistment Service: 6 months, 15 days h. Total Service: 6 months, 15 days i. Time Lost: 944 days j. Previous Discharges: None k. Highest Grade Achieved: E-2 l. Military Occupational Specialty: 11B10, Infantryman m. GT Score: 125 n. Education: NIF o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM, ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 21 April 2009, for a period of 3 years and 19 weeks. He was 19 years old at the time of entry. He was attending training at Fort Benning, GA when his discharge was initiated. The record does not contain any evidence of acts of valor or meritorious achievements. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 17 November 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-5, AR 635-200, by reason of misconduct (civil conviction) for his civilian conviction in the state of Indiana, on 3 March 2010, for dealing in a schedule 1 controlled substance, armed robbery, and burglary. 2. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 3. On 1 December 2011, the applicant consulted with legal counsel and 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 commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge. 4. On 23 April 2012, the applicant was notified to appear before an administrative separation board and advised of his rights. 5. On 7 May 2012, the administrative separation board convened and the applicant's legal counsel appeared as a result of the applicant being confined at the Indiana State Correctional Industrial Facility. The board recommended the applicant’s discharge with a characterization of service of under other than honorable conditions. 6. On 24 May 2012, the separation authority directed the applicant’s discharge with a characterization of service of under other than honorable conditions. 7. The applicant was discharged from the Army on 7 June 2012, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-5, AR 635-200, for misconduct (civil conviction), with a Separation Program Designator code (SPD) of JKB and an RE code of 3. 8. The applicant's record of service indicates 944 days of time lost as a result of his time incarcerated prior to sentencing from 6 November 2009 until 28 February 2010 and his punishment of ten (10) years in the institutional division, from 1 March 2010 until his discharge date of 7 June 2012. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A DA Form 4187 (Personnel Action), dated 23 November 2009, changing the applicant's duty status from present for duty to confinement. 2. A copy of the applicant's court "Abstract of Judgment of Conviction by Huntington Circuit Court State of Indiana with allied documents. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293 dated 12 February 2014, a copy of his report of proceedings by investigating officer/board of officers, a summary of proceedings, verbatim findings and recommendations, a copy of his enlisted record brief, dated 15 November 2011, the unit commander's recommendation memorandum, dated 17 November 2011, Circuit Court documents from the state of Indiana, and a copy of his DD Form 214 for the period of service under review. POST-SERVICE ACTIVITY: None was provided with the application. 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. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge was carefully considered. However, after examining the applicant’s record of service, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's 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 misconduct, the applicant diminished the quality his service below that meriting an honorable or a general, under honorable conditions discharge. The applicant’s record of service was marred by his civil conviction for dealing in a schedule 1 controlled substance, armed robbery, and burglary, resulting in his civilian confinement for 10 years. 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 his discharge was improper because the civilian convictions crimes used to discharge him occurred prior to his enlistment. 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 this issue. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that his discharge was improper. In fact, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. 5. 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. 6. The applicant expressed his desire for an upgrade of his discharge for the purpose of being eligible for some veteran benefits and maybe one day being able to reenlist in the military. 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 are 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. Further, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 8. The records show the proper discharge and separation authority procedures were followed in this case. 9. 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: 15 May 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) AR20140009151 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1