IN THE CASE OF: Mr. BOARD DATE: 25 March 2015 CASE NUMBER: AR20140007414 ___________________________________________________________________________ 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 to honorable. In addition, the applicant requests a change to the narrative reason for separation. 2. The applicant states, in effect, his discharge was inequitable because there was no pattern of misconduct or grounds for discharge. The applicant further contends, he was unable to appeal his discharge because he did not have the required time served. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 21 April 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 22 February 2013 d. Reason/Authority/SPD/RE Code: Pattern of Misconduct, AR 635-200, Chapter 14-12b, JKA, RE-3 e. Unit of assignment: Bravo Company, 602d Aviation Support Battalion, Camp Humphreys, Korea f. Current Enlistment Date/Term: 23 May 2011/6 years g. Current Enlistment Service: 1 year, 9 months h. Total Service: 1 year, 9 months i. Time Lost: None j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 15H10, Aircraft Pneudraulics Repairer m. GT Score: 130 n. Education: HS Graduate o. Overseas Service: Korea p. Combat Service: None q. Decorations/Awards: NDSM, GWTSM, KDSM, ASR, OSR r. Administrative Separation Board: N/A s. Performance Ratings: N/A t. Counseling Statements: Yes u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 23 May 2011 for a period of 6 years. He was 22 years old at the time of entry and a high school graduate. He served in Korea. He completed 1 year and 9 months of active duty service. When his discharge proceedings were initiated, he was serving at Camp Humphreys, Korea. SEPARATION FACTS AND CIRCUMSTANCES: 1. The evidence contained in the applicant’s service record indicates that on 22 January 2013, the unit commander notified the applicant of initiation of separation action under the provisions of AR 635-200, Chapter 14-12b, by reason of a pattern of misconduct. Specifically for receiving an FG Article 15 for resisting apprehension by an armed force policeman, striking a person having and in execution of military police duties, being drunk and disorderly, and wrongfully communicating a threat. Also for being apprehended by the Korean National Police for drunk and disorderly conduct, assault, and resisting apprehension (121008). 2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge. 3. On 23 January 2013, the applicant consulted with legal counsel, was advised of the impact of the discharge action and elected to submit a statement on his own behalf. The record is void of the applicant’s self-authored statement. 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 25 January 2013, 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 22 February 2013, with a characterization of service of general, under honorable conditions under the provisions of AR 635-200, Chapter 14-12b, for 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. Two negative counseling statements, dated 2 April 2012 and 8 October 2012, for drunk and disorderly conduct, assault consummated by battery, resisting apprehension, communicating a threat, and disrespect to a superior. 2. Article 15, dated 8 June 2012, for resisting while being apprehended by an armed force police officer, striking the police officer’s chest and legs with his foot, striking the police officer’s mouth with the his head, being drunk and disorderly, and wrongfully communicating to the policeman a threat (120331). The punishment consisted of a reduction to the grade of E-2, forfeiture of $835.00 pay for one month (suspended), 45 days of extra duty, and an oral reprimand (FG). 3. USFK SOFA CJ Form 1EK-E (U.S. Notice of Incident, Arrest and Receipt), dated 10 October 2012, reflects the applicant was apprehended by the Korean National Police for a physical altercation off post. 4. Headquarters, 2d Infantry Division memorandum, dated 10 October 2012, reflects the applicant had been placed on an international hold pending the completion of all judicial proceedings as outlined in the United States-Republic of Korea Status of Forces Agreement (US-ROK SOFA). 5. Headquarters, 2d Infantry Division memorandum, dated 13 December 2012, reflects that the international hold previously imposed on the applicant was removed. 6. DA Form 3822-R (Report of Mental Status Evaluation), dated 20 December 2012, reflects that the applicant had a clear and normal thought process and was mentally responsible. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293, dated 16 April 2014, and a DD Form 214 covering the period of service under review. 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 "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, pattern 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. DISCUSSION AND RECOMMENDATION: 1. The applicant’s request for an upgrade of the characterization of his discharge and narrative reason for discharge was carefully considered. However, after examining the applicant’s record of service, his military records, the documents 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 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 an Article 15 for multiple violations of the Uniform Code of Military Justice. 3. 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 14-12b, pattern of misconduct. 4. 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. 5. The applicant contends the discharge was inequitable because there was no pattern of misconduct or grounds for discharge. 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 was unjustly discriminated. In fact, the applicant’s Article 15 and arrest record justify a pattern of misconduct. The applicant’s statements alone do 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 applicant contends he was unable to appeal the discharge process due to not having the required time served. The record reflects the applicant consulted with legal counsel on 23 January 2013 and was advised of the impact of the discharge. It was at this time, the applicant had the opportunity to pose any questions or concerns regarding his impending discharge, to include the appeals process. 7. The records show the proper discharge and separation authority procedures were followed in this case. 8. 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: 25 March 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) AR20140007414 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1