IN THE CASE OF: BOARD DATE: 15 October 2014 CASE NUMBER: AR20140000102 ___________________________________________________________________________ Board Determination and Directed Action 1. After carefully examining the applicant’s record of service during the period of enlistment under review, and notwithstanding the examiner’s Discussion and Recommendation that follows, the Board determined the discharge is inequitable. The Board found the circumstances surrounding his discharge (i.e., he should have been discharged from basic training; the chain of command delayed the discharge process and the investigation took four months), mitigated the discrediting entry in his service record. 2. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable. 3. Further, the Board also voted to change the narrative reason for separation in the following manner: a. block 25, separation authority changed to AR 635-200, paragraph 14-12b, b. block 26, separation code changed to JKA, and c. block 28, narrative reason for separation changed to a Pattern of Misconduct. 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 did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. He requests a change to the narrative reason for separation. 2. The applicant states, in effect, during advanced individual training (AIT), he was accused of sexual harassment; he was under investigation, went into state of depression and was not motivated to train. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 18 December 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 16 July 2013 d. Reason/Authority/SPD/RE: Misconduct Serious Offense), AR 635-200, Chapter 14, paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: A Company, 1-13th Aviation Regiment, Fort Rucker AL f. Current Enlistment Date/Term: 14 November 2012, 6 years g. Current Enlistment Service: 8 months, 3 days h. Total Service: 8 months, 3 days i. Lost time: None j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: None m. GT Score: 105 n. Education: College Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant's record shows he enlisted in the Regular Army on 14 November 2012, for a period of six years. He was 23 years old at the time of entry and a college graduate. He achieved the rank of SPC/E-4. He was attending advanced individual training (AIT) at Fort Rucker, AL when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 27 June 2013, 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 (serious offense) for making inappropriate remarks and sexually harassing another Soldier on multiple occasions. 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. 3. On 27 June 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement on his behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge. 4. On 9 July 2013, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions. 5. The applicant was discharged from the Army on 16 July 2013, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 6. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. An Article 15, dated 28 May 2013, for violating a lawful general regulation, by wrongfully creating a hostile work environment (130303); orally communicating certain indecent language to PFC K. (130304) and PFC L. (130317); the punishment consisted of a reduction to E-1, forfeiture of $758 pay for two months (suspended), extra duty for 45 days, and restriction for 45 days (FG). 2. The applicant received two negative counseling statements, dated 15 March 2013, and 29 May 2013, for being under investigation for sexual harassment and recommended for separation. 3. Findings and recommendations of the AR 15-6 investigation (five pages), dated 21 March 2013, indicating the allegations against the applicant were substantiated. 4. An AR 15-6 investigation timeline dated 21 March 2013 (four pages), with numerous sworn statements regarding the sexual harassment allegation. 5. A Memorandum, recommendation for sexual harassment case, dated 6 April 2013, indicating the sexual assault response counselor corroborated the applicant did sexually harass another Soldier. 6. A DA Form 3822-R (Report of Mental Status Evaluation), dated 14 June 2013, which indicated the applicant was diagnosed with an adjustment disorder with depressed mood. However, he was psychiatrically cleared for administrative separation IAW AR 635-200, Chapter 14. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 149, and a DD Form 214. POST-SERVICE ACTIVITY: The applicant did not provide any information 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, paragraph 14-12c, 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. EXAMINER’S DISCUSSION AND RECOMMENDATION: 1. The applicant did not properly annotate the enclosed application requesting a possible discharge upgrade. However, the Army Discharge Review Board considered the applicant for a possible upgrade as instructed in pertinent part by Department of Defense Instruction 1332.28 which stipulates that a request for review from an applicant without an honorable discharge shall be treated as a request for a change to an honorable discharge unless the applicant requests a specific change to another character of discharge. He requested a change to the narrative reason for separation. 2. After examining the applicant’s record of service, his military records, the issues and document 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. 3. 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 (serious offense), the applicant diminished the quality his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by an Article 15, two negative counseling statements, and an AR 15-6 investigation with associated documents. 4. 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. 5. The applicant requested a change to the narrative reason for separation. 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 (serious offense). The regulation further stipulates that no deviation is authorized. 6. The applicant contends during advanced individual training (AIT), he was accused of sexual harassment; he was under investigation, went into a state of depression and was not motivated to train. The record of evidence (AR 15-6) investigation found the applicant did sexually harass another Soldier while in AIT. 7. Further, the record shows that on 14 June 2013, the applicant underwent a mental status evaluation which indicated he was diagnosed with an adjustment disorder with depressed mood. However, he was psychiatrically cleared for administrative separation IAW AR 635-200, Chapter 14. 8. Also, 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. 9. The records show the proper discharge and separation authority procedures were followed in this case. 10. Therefore, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief. BOARD DETERMINATION AND DIRECTED ACTION: 1. After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s Discussion and Recommendation that follows, the Board determined the discharge is inequitable. The Board found the circumstances surrounding his discharge (i.e., he should have been discharged from basic training; the chain of command delayed the discharge process and the investigation took four months), mitigated the discrediting entry in his service record. 2. Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable. 3. Further, the Board also voted to change the narrative reason for separation in the following manner: a. block 25, separation authority changed to AR 635-200, paragraph 14-12b, b. block 26, separation code changed to JKA, and c. block 28, narrative reason for separation changed to a Pattern of Misconduct. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 15 October 2014 Location: Washington, DC Did the Applicant Testify: No Counsel: None Board Vote: Character Change: 3 No Change: 2 Reason Change: 4 No Change: 1 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: Honorable Change Characterization to: No Change Change Reason to: Pattern of Misconduct Change RE Code to: No Change Grade Restoration to: NA Change Authority for Separation: AR 635-200, Paragraph 14-12b Other: SPD Code to JKA 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) AR20140000102 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1