IN THE CASE OF: Mr. BOARD DATE: 20 March 2015 CASE NUMBER: AR20140005305 ___________________________________________________________________________ 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 to change the narrative reason for his discharge and its corresponding separation code. 2. The applicant states, in pertinent part and in effect, he believes the reason for his separation and its corresponding codes are in error because they were based on a citation for DUI/DWI that he did not commit. The charges for this were fully dismissed and not by a plea bargain in a federal court by a military JAG prosecutor for an incident that occurred on a military installation. His discharge is embarrassing for being separated for a serious offense which he never committed nor was he charged with. He adds an outline of his active duty and post-service achievements. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 24 March 2014 b. Discharge Received: Honorable c. Date of Discharge: 9 May 2013 d. Reason/Authority/SPD/RE Code: Misconduct (Serous Offense), AR 635-200, Paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: B Btry, 3rd Bn, 319th Airborne FA Regiment, 1st BCT, 82nd Airborne Division Fort Bragg, NC f. Current Enlistment Date/Term: 13 April 2011, 3 years g. Current Enlistment Service: 2 years, 0 months, 26 days h. Total Service: 6 years, 9 months, 19 days i. Time Lost: 2 days j. Previous Discharges: ARNG (060525-070411) / HD RA (070412-100310) / HD RA (100311-110412) / HD k. Highest Grade Achieved: E-5 l. Military Occupational Specialty: 13B2P, 2B Cannon Crewmember m. GT Score: 112 n. Education: GED o. Overseas Service: SWA p. Combat Service: Afghanistan (070704-080721), (100130-110130), (120428-120927) q. Decorations/Awards: ARCOM-3; AAM; AGCM; NDSM; ACM-2CS; GWOTSM; NPDR; ASR; OSR-2; NATO MDL; CAB r. Administrative Separation Board: No, conditionally waived s. Performance Ratings: Yes t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The record shows the applicant enlisted in the Regular Army on 12 April 2007, and reenlisted twice thereafter. The latter reenlistment was on 13 April 2011, for a period of 3 years. He was 18 years old at the time of entry and had a high school equivalency (GED). He was trained in and awarded military occupational specialty (MOS) 13B2P, 2B Cannon Crewmember. He served in Afghanistan. He was awarded three ARCOMs, an AAM, and a CAB. He completed 6 years, 9 months, and 19 days of active duty and reserve service. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record shows that on 20 December 2012, 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 being pulled over by the military police and discovered to have been driving under the influence of alcohol (120911). 2. The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights. 3. On 20 December 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than an honorable, and elected to submit a statement on his behalf. The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts. The intermediate commanders reviewed the proposed action. The battalion commander recommended an honorable discharge and the brigade commander recommended approval of the separation with an under other than honorable conditions discharge. 4. On 21 March 2013, the separation authority approved the conditional waiver request, waived further rehabilitation, and directed the applicant’s discharge with a characterization of service of honorable. 5. The applicant was discharged from the Army on 9 May 2013, with a characterization of service of honorable 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 two days of time lost for being AWOL from 18 October 2011, until he returned to his unit on 20 October 2011. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. A General Officer Memorandum of Reprimand (GOMOR), dated 20 February 2013, for driving under the influence of alcohol, driving 36 mph in a 25 mph zone, and a breathalyzer test determined his blood alcohol content to be .09 percent. 2. Article 15, dated 29 November 2011, for being AWOL (111017-111019). The punishment consisted of reduction to the grade of E-4, forfeiture of $1,115 (suspended), and 45 days of extra duty (suspended), (FG). 3. A negative counseling statement, dated 19 October 2011, for being AWOL. 4. Two NCOERs rendered during the period under current review: a. A “Change of Rater” report covering the period of 1 August 2012 to 12 April 2013. The applicant was rated as “Fully Capable” and received 1/2 from the senior rater. b. A “Relief for Cause” report covering the period of 1 December 2010 to 28 November 2011. The applicant was rated as “Fully Capable” and received 3/2 from the senior rater. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a self-authored statement, dated 20 March 2014; Magistrate Court Dismissal Order, dated 12 February 2013; DD Form 214 for service under current review; separation packet; three enlistment contracts; ARNG Retirement Points History Statement; and a pre-separation counseling checklist. POST-SERVICE ACTIVITY: The applicant states, in effect, he is currently enrolled in college and is about to complete his associate’s degree with a 3.0 GPA, and will start his aviation science major. He works fueling planes, works part-time at a fishing store, and is doing some remodeling work on houses. 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 to change the narrative reason and its corresponding codes for his discharge was carefully considered. However, after examining the applicant’s service record and the issues and documents submitted with the application, there are insufficient mitigating factors to merit a change to the narrative reason and its corresponding codes 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 standards for acceptable conduct and performance of duty by military personnel. The applicant by violating the Army's policy not to abuse alcohol, compromised the special trust and confidence placed in an NCO. The applicant, as an NCO, had the duty to support and abide by the Army's alcohol abuse policies. By abusing alcohol as a serious incident of misconduct, the applicant knowingly risked a military career and diminished the quality of his service. 3. The applicant contends the narrative reason for his discharge and its corresponding codes are in error because it was based on a citation for DUI/DWI that he did not commit. 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. There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he may have been unjustly discriminated. In fact, the applicant’s GOMOR and negative counseling statement justify a serious incident of misconduct. The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or sufficient evidence has been provided with the request to change the narrative reason for his discharge. 4. The applicant contends that the charges against him were fully dismissed without a plea bargain. However, this action is a procedural step which is part of a normal process, when an alternative forum is chosen. In this case, the charges were dismissed without prejudice because of prosecutorial discretion. 5. Regarding the applicant contentions that the narrative reason for the discharge should be changed, he was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with an honorable discharge. 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 contends he is currently enrolled in college and about to complete his associate’s degree with a 3.0 GPA, and will start his aviation science major. He also works fueling planes, works part-time at a fishing store, and is doing some remodeling work on houses. The applicant’s post-service accomplishments have been noted as outlined in his self-authored statement with the application. However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for the discharge. 7. 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 a change to the narrative reason for his discharge as shown by the serious incidents of misconduct as a documented action by the imposition of a GOMOR. 8. 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. Accordingly, the records show the proper discharge and separation authority procedures were followed in this case. 9. 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: 20 March 2015 Location: Washington, DC Did the Applicant Testify? NA Counsel: None Witnesses/Observers: NA Board Vote: Character Change: NA No Change: NA 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: NA 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) AR20140005305 Page 7 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1