IN THE CASE OF: BOARD DATE: 17 November 2014 CASE NUMBER: AR20140014563 ___________________________________________________________________________ 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 an upgrade of his discharge from general, under honorable conditions to honorable, a change to his narrative reason for discharge, a change to his reentry eligibility (RE) code, and a change to his rank. 2. The applicant states, in effect, that he was unjustly discharge. He contends he was discharged for wearing the rank of a noncommissioned officer which is not true. He contends the only time he wore the rank of a noncommissioned officer was when he was promoted in April of 2007 prior to being told his was promoted by mistake. He would like an upgrade of his discharge for the purpose of being able to continue his military career in the United States Army Reserve, Army National Guard or maybe become an officer. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 13 August 2014 b. Discharge received: General, Under Honorable Conditions c. Date of Discharge: 3 January 2008 d. Reason/Authority/SPD/RE: Pattern of Misconduct, AR 635-200, Chapter 14 Paragraph 14-12b, JKA, RE-3 e. Unit of assignment: HHS, 3rd Bn, 13th FA Bn, Fort Sill, OK f. Current Enlistment Date/Term: 6 February 2007, 4 years g. Current Enlistment Service: 10 months, 28 days h. Total Service: 3 years, 8 months, 12 days i. Time Lost: None j. Previous Discharges: RA-040422-070205/HD k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 42A10, Human Resources Specialist/13P10, MLRS Fire Direction Specialist m. GT Score: 113 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Iraq (050127-060127) q. Decorations/Awards: ARCOM, AAM-4, AGCM, NDSM, ICM-2/2BSS GWOTSM, ASR, OSR, CAB r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: Yes SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 22 April 2004, for a period of 3 years. He reenlisted 6 February 2007, for a period of 4 years. He was 22 years old at the time of reenlistment and a high school graduate. His record indicates he served a period of combat in Iraq; achieved the rank of SPC/E-4; and earned several awards to include the ARCOM, four AAMs, and the AGCM. He was serving at Fort Sill, OK when his discharge was initiated. He completed 3 years, 8 months, and 12 days of military service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 15 November 2007, 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 pattern of misconduct. Specifically for the following offenses: a. wrongfully wearing the rank of Sergeant on his uniform between (070820-071012), and b. making five false official statements (070926, 071010, 071012, 071024, and 071025). 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 26 November 2007, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived 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 20 December 2007, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. 5. The applicant was discharged from the Army on 3 January 2008, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, with a Separation Program Designator code (SPD) of JKA and an RE code of 3. 6. On 28 November 2008, the Army Discharge Review Board reviewed the applicant's case and determined that relief was warranted. Accordingly, the board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions. 7. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A memorandum for commander, dated 20 December 2007, which indicates the applicant received a FG Article 15, dated 25 October 2007, for one violation of Article 134 (wrongfully wearing the rank of SGT/E-5 upon his uniform), and for violations of Article 107 (making false official statements). The punishment consisted of a reduction to PVT/E-1, forfeiture of $650.00 pay per month for two months, and extra duty and restriction for 45 days. 2. A copy of the applicant's decision letter from the Army Discharge Review Board, dated 1 December 2008. 3. A copy of the applicant's decision letter from the Board for Correction of Military Record, dated 14 April 2011. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided an online application, dated 11 August 2014, self-authored statement, a copy of his promotion packet, copy of his prior DD Form 215 and DD Form 214, Army physical fitness test scorecard, record fire scorecard, service school academic evaluation report, MOS orders, certificates of course completion and training (8), personnel data sheet, LES for the month of April, promotion orders, dated 27 March 2007, promotion point cut-off scores for the month of April 2007 and September 2007, copy of enlisted record brief, dated 5 April 2007, and AIPD Course documents (16 pages). POST-SERVICE ACTIVITY: The applicant states since his discharge he has completed his degree in psychology and has maintained a good job working for an airline as a supervisor. 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, 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 his discharge, a change to the narrative reason for his discharge and a change to his RE code was carefully considered. However, after examining the applicant’s service record, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit a change to the narrative reason for the discharge and a change to his RE code. 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 multiple violations of the Uniform Code of Military Justice. 3. The applicant contends he was unjustly discharge. 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 he was unjustly discharged. In fact, the applicant’s Articles 15 for wrongfully wearing the rank of sergeant on his uniform and making false official statements justify a pattern of misconduct. The applicant’s statements alone does 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. 4. The applicant contends that a change in his narrative reason for discharge and his RE code would allow for his reenlistment. 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. 5. Therefore, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief. 6. Additionally, the applicant requests that his rank be restored. The Army Discharge Review Board is not empowered to restore former service member's grade, rate or rank. The Board may only change the characterization or reason for discharge. Furthermore, evidence of record shows the Board for Correction of Military Records considered this issue on 12 April 2011 and determined that the evidence presented at the time did not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of his case were insufficient as a basis for correction of his record. 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: None DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional documents: a. Cut-off points for April 2007 (3 pages) b. Cut-off points for September 2007 (3 pages) c. Army ID as SGT d. Promotion Point Data (2 pages) 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: 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: 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) AR20140014563 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1