BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017328 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017328 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ______________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017328 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his general, under honorable conditions discharge. 2. The applicant states, in effect, that he was discharged from the U.S. Army based on misconduct; however, the reason for his discharge is not true. a. He states that he was visiting with his brother and nephew. They were outside talking and someone thought they were going to fight, but it was a misunderstanding and there was no fight. The police came and talked to all three of them. The applicant attempted to explain that he was in the military and that there was no fight. He asserts that he did not resist arrest. He adds that the information that indicates he is a gang member is false. b. He states the Army Discharge Review Board (ADRB) denied his request to upgrade his discharge and correct his reentry (RE) code. He requests an impartial review of his case. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) with no supporting documents. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 3 November 2008 for a period of 3 years and 28 weeks. Upon completion of training he was awarded military occupational specialty (MOS) 91B (Wheeled Vehicle Mechanic). a. He served in Iraq in support of Operation Iraqi Freedom from 15 March 2010 through 1 March 2011. b. He was promoted to specialist (E-4) on 3 November 2010. 2. He accepted nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 86 (four specifications), for failing to go at the time prescribed to his appointed place of duty (i.e., on 7, 8, 9, and 10 November 2011). His punishment included reduction to private first class/pay grade E-3 (suspended for 90 days), forfeiture of $455 pay (suspended for 90 days), and 14 days of extra duty. He did not appeal the punishment. 3. The applicant reenlisted in the Regular Army on 17 May 2012. 4. On 26 September 2012, the applicant's commander notified him that he was recommending him for separation under the provisions of (UP) Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 (Separation for Misconduct), paragraph 14-12c, based on commission of a serious offense. a. The reasons for his proposed action were the applicant was drunk and disorderly on 6 November 2011. In addition, he resisted being apprehended by a civilian police officer and he wrongfully communicated a threat to two civilian police officers. b. The applicant was advised of his rights and the separation procedures involved. The commander also informed him that he was recommending he receive a general, under honorable conditions characterization of service. 5. Following the notification, the applicant acknowledged he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights. a. He requested consulting counsel and representation by military counsel. b. He indicated that he would submit statements in his own behalf. c. He acknowledged that he understood he could receive a general, under honorable conditions discharge or an under other than honorable conditions discharge, and that he may expect to encounter substantial prejudice in civilian life in the event either type of discharge was issued to him. d. The applicant and counsel (a staff judge advocate officer) each placed their signature on the document. (1) The applicant submitted a Letter of Intent. He acknowledged having been arrested before on suspicion of gang affiliation; however, he denied being a gang member. He acknowledged that members of his family were affiliated with different gangs, but he wanted to get away from that lifestyle. He stated that was the reason he enlisted in the U.S. Army and to also to serve the nation in time of war. He offered a summary of his military service. He expressed his desire to stay in the Army and continue his military career. (2) The applicant's squad leader and company commander submitted statements on behalf of the applicant. They offered positive comments concerning the applicant's duty performance and endorsed his request to be retained in the U.S. Army. 6. On 3 November 2012, the battalion commander recommended the applicant be discharged from service with a general, under honorable conditions characterization of service. 7. On 7 November 2008, the separation authority directed the applicant be discharged UP AR 635-200, paragraph 14-12c, with a general, under honorable conditions discharge. 8. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty this period on 3 November 2008 and he was discharged under honorable conditions on 7 November 2012 UP AR 635-200, paragraph 14-12c, for misconduct (serious offense). He had completed 4 years and 5 days of net active service during this period. It also shows in: * item 26 (Separation Code): "JKQ" * item 27 (Reentry Code): "3" 9. On 30 April 2014, the applicant submitted an application to the ADRB for an upgrade of his discharge and a change to the RE code. On 31 July 2015, the ADRB notified the applicant the reason for his discharge and the character of his service were both proper and equitable and denied the applicant relief. He was advised that his request to change the RE code on his DD Form 214 did not fall under the purview of the ADRB and that he could apply to the Army Board for Correction of Military Records. Additionally, he could contact a recruiter to determine his eligibility to reenter military service. REFERENCES: 1. Manual for Courts-Martial (MCM), United States (2012 Edition), Table of Maximum Punishment includes the following offenses among those for which a punitive discharge is authorized - * Article 95 (Resistance, breach of arrest, and escape) – 1 year * Article 134 (Threat, communicating) – 3 years 2. AR 635-200 sets forth the authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. The conditions that subject Soldiers to discharge include the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the MCM. A discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the member's overall record. b. Chapter 3, 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. 3. AR 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 Soldiers discharged UP AR 635-200, paragraph 14-12c, based on misconduct (serious offense). 4. The SPD/RE Code Cross Reference Table stipulates that an RE code of "3" will be assigned to members separated with an SPD code of "JKQ." 5. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR). Chapter 3 (Basic Qualifications for Enlistment in the RA and USAR, Prior Service Applicants) shows RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; eligibility: ineligible unless a waiver is granted. DISCUSSION: 1. The applicant contends, in effect, that his discharge should be upgraded because he served honorably without any incidents prior to the incident in question, the reason for his discharge is not true, and he is interested reentering military service, but the RE code precludes his reentry. 2. The applicant's successful service from 3 November 2008 through the date prior to the incident that occurred on 6 November 2011 is acknowledged. 3. The applicant's administrative discharge UP AR 635-200, paragraph 14-12c, for misconduct based on commission of serious offenses (that included being drunk and disorderly, resisting being apprehended, and communicating a threat to law enforcement officers) was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. In addition, the type of discharge directed, authority, and narrative reason shown on the applicant's DD Form 214 are appropriate and correct. a. The evidence of record also shows the correct entry on the DD Form 214 for item 27, for a Soldier assigned SPD "JKQ" [Misconduct (Serious Offense)] is RE code "3." b. There is an insufficient evidentiary basis for correcting his DD Form 214. 4. The evidence of record shows: a. A discharge under other than honorable conditions is normally considered appropriate for personnel separated for misconduct based on commission of a serious offense. b. The applicant's company commander recommended the applicant for separation based on commission of a serious offense. He also recommended a general, under honorable conditions discharge in the event the separation action was approved. c. The battalion commander recommended that the applicant's service be characterized as general, under honorable conditions. d. Based on the foregoing, it is reasonable to conclude that the applicant's entire record of service was considered by his chain of command when the separation authority directed the applicant's service be characterized as general, under honorable conditions. e. The totality of the applicant's service did not merit an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017328 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017328 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2