IN THE CASE OF: Mr. BOARD DATE: 15 October 2014 CASE NUMBER: AR20140000159 ___________________________________________________________________________ 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 from general, under honorable conditions to honorable and a change to the narrative reason for the discharge. 2. The applicant states, in effect, that he was discharged as a result of not being able to carry a firearm; however, his record shows he wasn't charged with a felony. Therefore, he is authorized to carry a firearm. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 23 December 2013 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 23 May 2013 d. Reason/Authority/SPD/RE: Misconduct (Serious Offense), AR 635-200, Chapter 14, paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: F Co, 299th CS, Fort Riley, KS f. Current Enlistment Date/Term: 30 December 2009, 4 years and 21 weeks g. Current Enlistment Service: 3 years, 3 months, 1 day h. Total Service: 3 years, 3 months, 1 day i. Time Lost: 48 days j. Previous Discharges: None k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 92G10, Food Service Operation m. GT Score: 99 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Iraq (101115-111101) q. Decorations/Awards: ARCOM, ICM-w/CS, NDSM, GWOTSM, ASR, OSR, MUC 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 30 December 2009, for a period of 4 years and 21 weeks. He was 19 years old at the time of entry and a high school graduate. His record indicates he served a period of combat in Iraq; earned several awards including the ARCOM, and achieved the rank of SPC/E-4. He was serving at Fort Riley, KS when separation action was initiated. He completed 3 years, 3 months, and 1 day of military service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 8 May 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). Specifically for the following offenses: a. being confined by the Geary County Police and charged with criminal use of weapons, possession of marijuana, and possession of drug paraphernalia on (121114), b. going AWOL (130207-130211), and c. violating a lawful order from a commissioned officer to remain within the limits of Fort Riley (130326). 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 9 May 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action, 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 commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge. 4. On 16 May 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 23 May 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), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 6. The applicant’s record of service indicates 48 days of time lost; 16 days for being confined by civilian authorities 14 November 2012 until his release on 30 November 2012, 3 days for being confined by civilian authorities 26 January 2013 until his release on 28 January 2013, 6 days from 7 February 2013 until his return on 11 February 2013, 24 days for going AWOL 26 February 2013 until his release on 22 March 2013, and two days for going AWOL 20 April 2013 until his return on 22 April 2013. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. District Court of Geary County, Kansas court document dated 20 December 2012. 2. Ten DA Forms 4187 (Personnel Action), dated between 14 November 2012 and 22 April 2013, changing the applicant's duty status from PDY to CCA, CCA to PDY, PDY to CCA, CCA to PDY, PDY to AWOL, AWOL to PDY, PDY to CCA, CCA to PDY, PDY to AWOL, and AWOL to PDY. 3. Two negative counseling statements dated 30 November 2012 and 8 April 2013, for going AWOL, disrespect toward superior commissioned officer, assaulting or willfully disobeying superior commissioned officer, failure to obey order or regulation, and informing the applicant he was flagged and being considered for separation from the Army under Chapter 14-12 for misconduct. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, a copy of his counseling statement dated 8 April 2013, and District Court of Geary County, Kansas court document, dated 20 December 2012. POST-SERVICE ACTIVITY: None were 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. 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 (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. 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 of his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by his incidents of misconduct, (i.e., criminal use of weapons, possession of marijuana, and possession of drug paraphernalia, incidents of period of AWOL, and confinement by civilian authorities, and his negative counseling statements). 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. Furthermore, 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 applicant also requested his narrative reason for discharge be changed. 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(2), for misconduct (serious offense) . The regulation further stipulates that no deviation is authorized. 6. 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. 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 October 2014 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) AR20140000159 Page 2 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1