IN THE CASE OF: Mr. BOARD DATE: 4 December 2013 CASE NUMBER: AR20130009076 ___________________________________________________________________________ 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 improper. The evidence indicates the applicant was denied an administrative separation board and was entitled to one because he notified he was receiving an under other than honorable conditions discharge. An administrative separation board is a right and required under the provisions of Army Regulation 635-200, and the record reflects the applicant did not receive an administrative separation board. Denial of an administrative separation board constituted a prejudicial error to the rights of the applicant and the discharge is improper. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority. This action entails a restoration of grade to PV2/E-2. However, this action does not entail a change to the reentry eligibility (RE) code. 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 under other than honorable conditions to honorable and a change to the narrative reason for separation. 2. He states, in effect, while in Kuwait he received several awards and was even promised a promotion to specialist when he returned to CONUS and did not receive the promotion promised; he was an exemplary Soldier until his return from deployment and he believes he was wronged in several instances by the Army and he served his country well. While in Kuwait, he signed a lease to rent a home in Fayetteville; his girlfriend and he paid the deposit, first and last month rent, upon returning to Ft. Bragg in April 2002, they discovered the house was already rented; this put so much pressure on his relationship with his girlfriend because she had no place to live, she returned home and they eventually broke up. He became angry and frustrated; he was sent to anger management counseling and in all honesty, felt betrayed by those he thought would support him; he left Ft. Bragg on August 7, 2002 and did not return until November 13, 2003, he turned himself in to his unit and because he refused to reenlist he was discharged with an under other than honorable discharge. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 13 May 2013 b. Discharge Received: Under Other Than Honorable Conditions c. Date of Discharge: 23 March 2004 d. Reason/Authority/SPD/RE: Misconduct, AR 635-200, Chapter 14, paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: 101st Chemical Company, Dragon Brigade, Fort Bragg, NC f. Current Enlistment Date/Term: 9 August 2000, 4 years g. Current Enlistment Service: 2 years, 5 months h. Total Service: 2 years, 5 months/block 12c on the DD Form 214 net active service this period, is incorrect and should read 2 years and 5 months i. Lost time: 441 days j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 52D10, Power Generation Equipment Repairer m. GT Score: 94 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Afghanistan x 2 (071019-080507), (060828-070311) q. Decorations/Awards: ARCOM, AAM, NDSM, ACM-W/2 CS, GWOTSM, ASR, NATOMDL r. Administrative Separation Board: No s. Performance Ratings: No t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant's record shows he enlisted in the Regular Army on 9 August 2000, for a period of 4 years. He was 19 years old at the time of entry and a high school graduate. He was trained in and awarded military occupational specialty (MOS) 52D10, Power Generation Equipment Repairer. His record also shows that he served two combat tours, earned several awards which included an ARCOM, and AAM; he achieved the rank of SPC/E-4. He was serving at Fort Bragg, NC when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES 1. The evidence contained in the applicant’s service record indicates that on 4 February 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct-commission of a serious offense. Specifically for the following offenses: a. being a deserter during the period (020807-031022) b. for wrongfully using marijuana 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 11 February 2004, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board, contingent upon him receiving a characterization of service of no less favorable than honorable and indicated he intended to submit a statement on his behalf; however, it was not in the file. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate and senior commanders reviewed the proposed action and recommended approval of an under other than honorable conditions discharge. 4. On 2 March 2004, the applicant consulted with legal counsel again, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board, and the election of rights did not indicate if a statement was or was not submitted on his behalf. 5. On 9 March 2004, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. The applicant was reduced to the lowest enlisted rank. 6. The applicant’s record of service indicates 441 days of time lost for being AWOL from 7 August 2002 until his surrender on 22 October 2003. 7. The applicant was discharged from the Army on 23 March 2004, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct, a Separation Program Designator (SPD) code of JKQ and an RE code of 3. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. An Article 15 dated, 21 November 2003, for without authority and with intent to remain away there from permanently, absented himself from his unit (020807-031022); the punishment consisted of reduction to E-2, forfeiture of $301 pay x 1 month, extra duty for 14 days and restriction for 14 days, (CG). 2. An Article 15 dated, 28 May 2002, for lying to a noncommissioned officer (1SG), (020521); malingering on sick call (020520); failing to repair (020520); and dereliction of duty; the punishment consisted of extra duty for 14 days and restriction for 14 days, (Summarized). 3. The record of evidence contains a positive urinalysis report coded IR (Inspection Random), dated 30 December 2003 for marijuana. 4. A DA Form 3822-R (Report of Mental Status Evaluation), dated 11 December 2003, which indicated his thinking process was clear and he was psychiatrically cleared for any administrative action deemed appropriate by his command. 5. The record of evidence also contains three DA Forms 4187 (Personnel Action), dated between 17 October 2003 and 22 October 2003, which indicated the present for duty, AWOL and dropped from rolls dates. 6. He received three negative counseling statements that were done on 21 May 2002, 18 July 2002 and 26 July 2002, for dereliction of duty, lying to a NCO, malingering on sick call, missing formation and failing to report. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, two VA Forms 21-4138 (Statement in Support of Claim), VA Form 10-10EZ (Application for Health Benefits), (four pages), 101st Chemical Company, Operation Enduring Freedom (OEF) deployment roster (three pages), DA Form 638 (Recommendation for Award), AAM Citation, fax coversheet, and a DD Form 214. POST-SERVICE ACTIVITY: The applicant did not provide any with his 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. 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. 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 a change to the narrative reason for separation was carefully considered. However, after examining his military records, 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 separation. 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 incidents 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, a positive urinalysis report, three DA Forms 4187 and three negative counseling statements. 3. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance. 4. The applicant requested a change to the narrative reason for separation. However, 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, paragraph 14-12c, for misconduct. The regulation further stipulates that no deviation is authorized. 5. The applicant contends while in Kuwait, he received several awards and was even promised a promotion to specialist when he returned to CONUS and did not receive the promotion promised; he was an exemplary Soldier until his return from deployment and he believes he was wronged in several instances by the Army and he served his country well. The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge under review. 6. Further, 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. 7. The applicant further contends that while in Kuwait, he signed a lease to rent a home in Fayetteville; his girlfriend and he paid the deposit, first and last month rent, upon returning to Ft. Bragg in April 2002, they discovered the house was already rented; this put so much pressure on his relationship with his girlfriend because she had no place to live, she returned home and they eventually broke up. The record of evidence does not demonstrate that he sought relief through his command or the numerous Army community services like the Chaplain, Army Community Services, Community Counseling Center, and other resources available to all Soldiers. Likewise, he has provided no evidence that he should not be held responsible for his misconduct. 8. The applicant also contends he became angry and frustrated; he was sent to anger management counseling, and in all honesty felt betrayed by those he thought would support him; he left Ft. Bragg on August 7, 2002 and did not return until November 13, 2003, he surrendered to his unit and because he refused to reenlist he was discharged with an under other than honorable discharge. He had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. 9. Additionally, the evidence of record show that the applicant was discharged under the provisions of Chapter 14 for being a deserter and wrongfully using marijuana and not because he refused to reenlist in the Army. 10. The records show the proper discharge and separation authority procedures were followed in this case. 11. 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: Records Review Date: 4 December 2013 Location: Washington, DC Did the Applicant Testify: NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: 3 No Change: 2 Reason Change: 3 No Change: 2 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: Yes Change Characterization to: Honorable Change Reason to: Secretarial Authority Change RE Code to: NA Grade Restoration to: NA Change Authority for Separation: AR 635-200, Chapter 5-3 Other: Separation Program Designator (SPD) code JFF 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) AR20130009076 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1