IN THE CASE OF: Ms. BOARD DATE: 4 March 2015 CASE NUMBER: AR20140002145 ___________________________________________________________________________ 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 applicant’s characterization of service was improper. The applicant’s characterization of service was erroneously based on an alleged misconduct that occurred prior to her enlistment, absent any evidence of misconduct or substandard performance during the period of service under review, the characterization of her service should have been characterized as honorable. Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable. However, the Board determined that the reason for discharge was proper and equitable and voted not to change it. 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 to upgrade the characterization of her service from general, under honorable conditions to fully honorable, and to change the narrative reason for her discharge. 2. The applicant states, in effect, she was wrongfully discharged because the incident that led to her discharge occurred prior to her enlistment and references AR 635-200, paragraph 3-5e. An upgrade would allow her to reenlist as an officer. She served faithfully and was an asset to her unit. She was a platoon guide, student first sergeant, scored above average on APFTs, and exuded loyalty to her chain of command. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 27 January 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 24 December 2013 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200, Paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: B Co, 266th QM Bn, Fort Lee, VA f. Current Enlistment Date/Term: 28 May 2013, 3 years, 21 weeks g. Current Enlistment Service: 0 years, 6 months, 27 days h. Total Service: 0 years, 6 months, 27 days i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: None m. GT Score: 117 n. Education: 15 years 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 record shows the applicant enlisted in the Regular Army on 28 May 2013, for a period of 3 years and 21 weeks. She was 23 years old at the time of entry and had 15 years of education. Her record documents no acts of valor or significant achievement. She completed 6 months and 27 days of active duty service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 16 December 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 misconduct (serious offense), specifically for being arrested (131119) by a civilian police department and being charged with felony theft by taking, in the amount of $220,013.00 from her previous place of employment at an aquarium, and following the arrest, she was released to leave the state (131209). 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of her rights. 3. Subsequently, the applicant consulted with legal counsel; however, the record of consultation was not authenticated by the applicant or the legal counsel, although she elected to submit a statement on her own behalf. On 17 December 2013, the unit commander documented that the counsel refused to sign the election of rights form that shows he counseled the applicant. 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. The separation authority decision memorandum is not available; however, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was digitally authenticated by the applicant’s signature. 5. The applicant was discharged from the Army on 24 December 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 service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Memorandum, dated 17 December 2013, subject: Separation of [the applicant], rendered by a trial defense counsel, provided a rebuttal to the basis for the applicant’s separation as improper because the alleged misconduct occurred prior to her enlistment. 2. A negative counseling statement, dated 12 December 2012, for initiation of suspension of favorable personnel actions and an administrative separation for misconduct due to being in the process of an indictment for three felonies of being involved in a theft of $220,013 from a state aquarium. 3. A criminal warrant for her arrest, dated 15 October 2013, indicates the applicant was being arrested for theft by taking, $220,013.00 in currency, property of a state aquarium and a police department incident information and report, dated 4 March 2013. 4. An operation report (OPREP), dated 19 November 2013, rendered by the unit commander details the circumstances surrounding the allegations of a crime committed by the applicant. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a self-authored statement; a DD Form 214, a memorandum, dated 20 December 2013, subject: Request for Redress under Article 138, UCMJ – [the applicant]; TDS memorandum, dated 17 December 2013; character reference letter, dated 16 December 2013; and a congressional inquiry by the applicant, dated 19 December 2013. POST-SERVICE ACTIVITY: The applicant states, in effect, she is attending college to complete a degree. 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. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of her discharge and to change the narrative reason for her discharge was carefully considered. 2. After a careful review of the applicant’s military records, the issues, and the documents submitted with the application, the characterization of service appears to be improper. 3. The service record confirms that the applicant’s misconduct occurred prior to her enlistment, and she was not arrested and indicted for her felonies until after her enlistment. The record further confirms that there was ample evidence to prove she committed the alleged misconduct by a preponderance of evidence for which she could be separated under the provisions of Chapter 14, AR 635-200. However, the characterization of her service must be based on her current period of service and in absence of any misconduct or substandard performance; her characterization of service should be upgrade to honorable. 4. The applicant contends the narrative reason for the discharge should be changed because the incident that led to her discharge occurred prior to her enlistment. However, the record confirms that the basis for the applicant’s discharge was substantiated by ample evidence to prove she committed the alleged serious incidents of misconduct by a preponderance of evidence for which she could be separated under the provisions of Chapter 14, AR 635-200. 5. Furthermore, the applicant’s record of service was marred by being arrested and indicted for her felonies considered to be serious incidents of misconduct that was not consistent with the Army’s standards for acceptable personal conduct and performance by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. Accordingly, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200. The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," and the separation code is "JKQ." Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes. The regulation further stipulates that no deviation is authorized. There is no provision for any other reason to be entered under this regulation. 6. The applicant further expressed her desires to rejoin the military Service. 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. 7. The records show the proper discharge and separation procedures were not followed in this case, insofar as determining the appropriate characterization of service, absent any misconduct or substandard performance during the applicant’s current period of service under current review. 8. Therefore, the characterization being improper, recommend the Board grant partial relief in the form of an upgrade of the characterization of service to honorable. However, the narrative reason for the discharge was proper and equitable. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 4 March 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel/Representative: None Witnesses/Observers: NA Board Vote: Character Change: 5 No Change: 0 Reason Change: 0 No Change: 5 (Board member names available upon request) Board Action Directed: Issue a new DD Form 214: Yes Change Characterization to: Honorable 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) AR20140002145 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1