IN THE CASE OF: Mr. BOARD DATE: 13 June 2014 CASE NUMBER: AR20140007232 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and notwithstanding the examiner’s the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the length and quality of the applicant’s service, to include his combat service and witness testimony, and as a result it is inequitable. Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was both 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 an upgrade of his discharge from general, under honorable conditions to honorable and a change of the narrative reason for separation. 2. The applicant states, in effect, he was discharged two calendar days and one business day prior to his scheduled expiration term of service (ETS). The pattern of misconduct was not substantiated in civilian court. He was awarded an ARCOM after combat deployment and an AGCM for three years of honorable service; he was seen by his superiors, peers, and subordinates as a good Soldier and a strong asset to the unit for the duration of his service. He requests that the comment in block 18, member has not completed first full term of service be changed. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 23 April 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 26 April 2012 d. Reason/Authority/SPD/RE Code: Pattern of Misconduct , AR 635-200, Chapter 14, paragraph 14-12b, JKA, RE-3 e. Unit of assignment: Rear Detachment, Brigade Troops Battalion, Fort Wainwright, AK f. Current Enlistment Date/Term: 29 April 2008, 4 years g. Current Enlistment Service: 3 years, 11 months, 28 days h. Total Service: 4 years, 8 months, 3 days/block 12d on the applicant’s DD Form 214 total prior inactive service, is incorrect and should read 8 months, 5 days. i. Time Lost: None j. Previous Discharges: RA (060221-061025)/UNC k. Highest Grade Achieved: E-4 l. Military Occupational Specialty: 25Q10, Multi-Channel Transmission System Operator /Maintainer m. GT Score: 129 n. Education: HS Graduate o. Overseas Service: Southwest Asia p. Combat Service: Iraq (090107-090920) q. Decorations/Awards: ARCOM, NDSM, ICM-w/CS, GWOTSM, ASR, MUC r. Administrative Separation Board: No s. Performance Ratings: No t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 29 April 2008, for a period of 4 years. He was 23 years old at the time of entry and a HS Graduate. He was trained in and awarded military occupational specialty (MOS) 25Q10, Multi-Channel Transmission System Operator /Maintainer. His record also shows he served a combat tour, earned an ARCOM; achieved the rank of SPC/E-4. He was serving at Fort Wainwright, AK, when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates on 19 March 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of a pattern of misconduct for the following offenses: a. making a false official statement to Ms. R.C.L, of the District Attorney’s Office, by stating he was deploying in August, b. driving on a suspended license (110519), c. having 1LT H signing a memo stating he had completed 91 hours of community service, d. had several traffic violations which shows he lacks discipline to do the right thing, e. continuing to show a lack of integrity by receiving BAS after being told to discontinue payment. 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 19 March 2012, the applicant waived legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board (although he was not entitled to a board) and did not submit a statement on his 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 12 April 2012, 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 26 April 2012, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, a Separation Program Designator code (SPD) of JKA 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. An Article 15, dated 8 February 2012, for without authority, failing to go at the time prescribed to his appointed place of duty, x 2 (111205, 111007); the punishment consisted of extra duty for 14 days and an oral reprimand, (CG). 2. An Article 15, dated 23 August 2011, for being derelict in the performance of his duties by willfully failing to file the proper S-1 paperwork to discontinue the basic housing allowance of a fellow Soldier, as it was his duty do so (110624); the punishment consisted of reduction to E-3, forfeiture of $455 pay, and an oral reprimand, (CG). 3. He received five counseling statements dated between 22 August 2011 and 8 December 2011, for making a false statement, not using moral, proper ethic and common sense, failing to report the truth regarding community service, missing an appointment numerous times. 4. Five DA Forms 2823 (Sworn Statement), dated between 24 June 2011 and 22 August 2011, regarding the applicant failing to file S-1 paperwork to discontinue a Soldier’s basic housing allowance. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, with an issues page, self-authored statement (two pages), Chapter 14 separation documents (sixteen pages), and two letters of recommendation. POST-SERVICE ACTIVITY: The applicant did not provide any information with 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, patter of misconduct. 5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKA" will be assigned an RE Code of 3. ANALYST’S DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge and a change of the narrative reason for separation was carefully considered. However, after examining his military record, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change of the narrative reason for separation. 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 pattern of misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge. The applicant’s record of service was marred by two Articles 15, five negative counseling statements, and five sworn 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. The applicant requested a change to the narrative reason for separation. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, for a pattern of misconduct. The regulation further stipulates that no deviation is authorized. 5. The applicant contends he was discharged two calendar days and one business day prior to his ETS date. 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. 6. The applicant further contends the pattern of misconduct was not substantiated in civilian court. This contention was carefully considered; however, a determination as to the merit of this contention cannot be made because the facts pertaining to the civil court case are not contained in the available records and the applicant did not provide any evidence to support his contention regarding a civilian court. 7. Further, the command made an assessment of the applicant's potential for becoming a fully satisfactory Soldier. The applicant did not subsequently conform to required standards of discipline and performance; the command appropriately determined the applicant did not demonstrate the potential for further military service. 8. The applicant also contends he was awarded an ARCOM after his combat deployment and an AGCM for three years of honorable service; he was seen by his superiors, peers and subordinates as a good Soldier and a strong asset to the unit for the duration of his service. 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 overcome the reason for discharge and the characterization of service granted. 9. The applicant requested that the comment in block 18, member has not completed first full term of service be changed. This comment cannot be changed as the applicant did not complete his first full term of service. The separation approving authority approved the applicant’s discharge on 12 April 2012, although he was not discharged until 26 April 2012. The applicant did not reenlist and was discharged prior to completing his initial term of service. 10. The records show the proper discharge and separation authority procedures were followed in this case. 11. Therefore, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief. Board Determination and Directed Action After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and notwithstanding the examiner’s the Discussion and Recommendation, the Board determined that the characterization of service was too harsh based on the length and quality of the applicant’s service, to include his combat service and witness testimony, and as a result it is inequitable. Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable. The Board determined the reason for discharge was both proper and equitable and voted not to change it. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Personal Appearance Date: 13 June 2014 Location: Washington, DC Did the Applicant Testify: Yes Counsel: None Witnesses/Observers: Yes – Former Supervisor – E.D., witness Former Soldier – R.H., witness DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: 1. The applicant submitted the following additional documents: a. Letter of recommendation (JMP, USA SPC) – 1 page b. Letter of recommendation (JMT, USA SGT(Ret)) – 1 page 2. The applicant presented no additional contentions. In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing. Board Vote: Character Change: 4 No Change: 1 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) AR20140007232 Page 6 of 7 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1