IN THE CASE OF: BOARD DATE: 20 May 2015 CASE NUMBER: AR20140006821 ___________________________________________________________________________ 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 general, under honorable conditions discharge characterization and a change to the narrative reason for separation and reentry code. 2. The applicant states, in effect, in March 2012 the Human Resources Command approved administrative separation actions against him for alleged misconduct. The applicant states, an administrative separation board found that he committed adultery. He states, he makes no excuses for his actions, however, he had over 19 years of military service and should have been allowed to remain in the Army until he reached 20 years of service and allowed to retire. He contends he was never court-martialed or received any non-judicial punishment under Article 15, UCMJ. He states, his chain of command refused to accept his retirement packet. He states, he was improperly discharged based on 10 USC 1176. He states, this code stipulates that Soldiers with over 18 years of service and recommended for involuntary separation will be retained in the military until they reach the 20th year of service unless they are separated due to court-martial or detained by civil authorities. He requests to be reinstated in the military with back pay, promoted to the rank of master sergeant effective 1 August 2011, and allowed to serve until he is retirement eligible. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 14 April 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 7 February 2013 d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200 Chapter 14-12c, JKQ, RE-3 e. Unit of assignment: HHC, 2-1 Brigade Special Troops Battalion Fort Riley, KS f. Current Enlistment Date/Term: 28 February 2007/Indefinite g. Current Enlistment Service: 5 years, 11 months, 10 days h. Total Service: 19 years, 1 month, 28 days i. Time Lost: None j. Previous Discharges: DEP, 931210-940131, NA RA, 940201-960903, HD RA, 960904-981207, HD RA, 981208-020221, HD RA, 020222-070227, HD k. Highest Grade Achieved: E-7 l. Military Occupational Specialty: 92Y40, Unit Supply Specialist 14S40, Avenger Crewmember m. GT Score: 113 n. Education: GED w/some college o. Overseas Service: SWA, Italy, Cuba p. Combat Service: Afghanistan (020801-030121) Iraq (030801-040301) (080927-090929) (101115-110829) q. Decorations/Awards: ARCOM-7, AAM-2, JMUA, MUC, CGMUC AGCM-5, NDSM, ACM-w/A, GWOTEM GWOTSM, KCM, HSM, ICM-2CS, NPDR-3 ASR, OSR-2, CGSOR, NATO MDL, CAB r. Administrative Separation Board: Yes s. Performance Ratings: Yes t. Counseling Statements: No u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 1 February 1994, for a period of 3 years. He was 19 years old at the time of entry and had a General Equivalency Diploma with some college. He served in Iraq and Afghanistan and earned seven ARCOMs, two AAMs, and a CAB. He completed 19 years, 1 month, 28 days of active duty service. When his discharge proceedings were initiated, he was serving in Fort Riley, Kansas. SEPARATION FACTS AND CIRCUMSTANCES: 1. On 26 October 2011, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense). Specifically for violating AR 600-20 by having sexual relations with PFC J, a woman not his wife, and committing fraud and abuse of Field Ordering Officer (FOO) funds. 2. Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge. 3. On 22 November 2011, the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board. The applicant 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 commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge. 4. On 9 March 2012, the applicant was notified to appear before an administrative separation board and advised of his rights. 5. On 26 March 2012, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant’s discharge with characterization of service of general, under honorable conditions. 6. On 1 May 2012, the Commander, Headquarters, Fort Riley, Fort Riley, Kansas, adopted the findings and recommendations of the administrative separation board and recommended to HQDA that the applicant be discharged with a characterization of service of general, under honorable conditions. 7. On 9 December 2012, the Assistant Secretary of the Army, Manpower and Reserve Affairs, directed the applicant be separated from service with a general, under honorable conditions characterization of service. 8. The applicant was discharged from the Army on 7 February 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 a RE code of 3. 9. The applicant’s service record does not contain any evidence of unauthorized absences or time lost. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. AR 15-6 Investigation, dated 20 June 2011, reflects the applicant was the subject of an investigation for adultery. 2. Several CID Reports, dated 4 June 2011, 6 June 2011, 8 June 2011 x 2, 15 July 2011, 26 August 2011, 28 August 2011, and 7 October 2011 reflects the applicant was the subject of an investigation for sexual assault and inappropriate relationship. There is also one undated CID Report in the record. 3. A GOMOR, dated 18 August 2011, for having an inappropriate relationship with PFC J, a junior Soldier in his charge. 4. A MP Report, dated 24 October 2011, reflects the applicant was the subject of an investigation for wrongful sexual contact, indecent exposure, cruelty of subordinates, and forced sodomy. 5. DA Form 3822 (Report of Mental Status Evaluation), dated 5 October 2011, reflects the applicant had no obvious impairments, could understand the difference between right and wrong, and was diagnosed with an adjustment disorder with anxiety and depressed mood. He had a positive screening for Post Traumatic Stress Disorder (PTSD). 6. Eight NCOERs covering the period 1 August 2006 through 14 August 2012. He was assessed as “Among the Best” on six reports and “Marginal” on the remaining two reports by his raters. He received six “1/1” ratings and a “4/4” and “5/5” rating from his senior raters. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided an online application, dated 9 April 2014, and a DD Form 214. POST-SERVICE ACTIVITY: The applicant did not provide any in support of 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, misconduct (serious offense). 5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned a SPD Code of "JKQ" will be assigned a 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, his military records, 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 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. The applicant diminished the quality of his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by the findings of an administrative separation board that reflects he had an inappropriate relationship with a junior Soldier. 3. The applicant also requests a change to the narrative reason for discharge and reentry code. 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, for misconduct (serious offenses). The regulation further stipulates that no deviation is authorized. 4. Further, 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 is 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 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. 6. The applicant contends he had 19 years of service prior to his separation and based on 10 USC 1176 he should have been allowed to remain in the Army until he had 20 years of service and allowed to retire. However, AR 635-200, paragraph 1-14b stipulates that if the separation authority recommends involuntary separation of a Soldier with 18 or more years of active Federal service, the proceedings, with complete documentation and the recommendation of the separation authority, will be sent to HQDA for final determination. On 9 December 2012, the Assistant Secretary of the Army, Manpower and Reserve Affairs directed the applicant’s discharge with a general, under honorable conditions characterization of service. 7. The applicant also contends he should be reinstated on active duty with back pay and advanced to master sergeant. However, consideration of the applicant’s requests does not fall within the purview of this Board. The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans' Service Organization. 8. 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 May 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) AR20140006821 Page 6 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1