IN THE CASE OF: Mr. BOARD DATE: 30 January 2015 CASE NUMBER: AR20140001888 ___________________________________________________________________________ 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 his reentry eligibility (RE) code. 2. The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being able to reenlist. He contends that during his separation process he requested to be separated because of the situation that was going on with him and his NCO. He contends the commander and first sergeant were aware of the situation between the two of them. He contends the commander told him during the separation process that he would let him out with a general discharge so he could come back in at a later time to a different unit. He believes that he is ready to take the steps necessary to finish what he began. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 24 January 2014 b. Discharge received: General, Under Honorable Conditions c. Date of Discharge: 6 August 2008 d. Reason/Authority/SPD/RE: Misconduct, AR 635-200, Chapter 14, paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: USA DENTAC, Fort Irwin, CA f. Current Enlistment Date/Term: 6 July 2005 g. Current Enlistment Service: 3 years, 1 month, 1 day h. Total Service: 3 years, 1 month, 1 day i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 68E10, Dental Specialist m. GT Score: 109 n. Education: HS Graduate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: NDSM, GWOTSM, ASR r. Administrative Separation Board: No s. Performance Ratings: None t. Counseling Statements: None u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 6 July 2005, for a period of 4 years. He was 19 years old at the time of enlistment and a high school graduate. He was serving at Fort Irwin, CA when his discharge was initiated. The record does not contain any evidence of acts of valor or meritorious achievements. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 16 July 2008, 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 disrespectful toward an NCO (080514), and b. disobeying a superior NCO (080515 and 080522). 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights. 3. The applicant’s election of rights is not contained in the available record. Therefore, the presumption of government regularity is presumed in the discharge process. On 16 July 2008, the unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. 4. On 17 July 2008, 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 6 August 2008, 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: The unit command's recommendation memorandum indicates the applicant received an Article 15, 30 October 2007, for failure to report for duty. Punishment consisted of reduction to the grade of E-2 (suspended), forfeiture of $729.00 pay, extra duty and restriction for 30 days (FG). He received a second Article 15, 27 June 2008, for failure to report for duty. Punishment consisted of reduction to the grade of E-1, forfeiture of $622.00 pay, and extra duty and restriction for 15 days (FG). It was also noted that a vacation of suspension imposed on 29 October for failure to report for duty. Punishment included reduction to E-2. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293 and a letter of support. POST-SERVICE ACTIVITY: None was 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 and a change to his RE code 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 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 misconduct, the applicant diminished the quality his service below that meriting an honorable discharge. The applicant’s record of service was marred by two Article's 15 for violations of the Uniform Code of Military Justice. 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. The applicant also requested a change to his RE code for the purpose of being able to reenlist. 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 are 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. The applicant contends his discharge was the result of issues with his NCO. 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. In fact, the applicant’s two Articles 15 justify the 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. 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: 30 January 2015 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) AR20140001888 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1