IN THE CASE OF: Mr. BOARD DATE: 6 May 2015 CASE NUMBER: AR20140008534 ___________________________________________________________________________ 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 discharge from general, under honorable conditions to honorable and a change to the narrative reason for separation to include the reentry eligibility (RE) code. 2. The applicant states, in effect, he did not receive legal counsel prior to his discharge; he was told to just sign papers. He desires to receive the GI Bill for school and to reenlist in the military. DISCHARGE UNDER REVIEW INFORMATION: a. Application Receipt Date: 13 May 2014 b. Discharge Received: General, Under Honorable Conditions c. Date of Discharge: 14 May2008 d. Reason/Authority/SPD/RE: Misconduct (Serious Offense), AR 635-200, Chapter 14, paragraph 14-12c, JKQ, RE-3 e. Unit of assignment: A Troop, 6-8th Cavalry Regiment, Fort Stewart, GA f. Current Enlistment Date/Term: 4 January 2007, 3 years and 19 weeks g. Current Enlistment Service: 1 year, 4 months, 11 days h. Total Service: 1 year, 4 months, 11 days i. Lost time: None j. Previous Discharges: None k. Highest Grade Achieved: E-3 l. Military Occupational Specialty: 19D10, Cavalry Scout m. GT Score: 92 n. Education: GED Certificate o. Overseas Service: None p. Combat Service: None q. Decorations/Awards: ASR r. Administrative Separation Board: No s. Performance Ratings: No t. Counseling Statements: NIF u. Prior Board Review: No SUMMARY OF SERVICE: The applicant enlisted in the Regular Army on 4 January 2007, for a period of 3 years and 19 weeks. He was 18 years old at the time of entry with a GED Certificate. He was trained in and awarded military occupational specialty (MOS) 19D10, Cavalry Scout. His record does not contain any evidence of acts of valor or meritorious achievements; and he achieved the rank of PFC/E-3. He was serving at Fort Stewart, GA when his discharge was initiated. SEPARATION FACTS AND CIRCUMSTANCES: 1. The applicant’s service record is void of the complete facts and circumstances concerning the events which led to the discharge from the Army. However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant’s signature. 2. The DD Form 214 indicates on 14 May 2008, the applicant was discharged under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a characterization of service of general, under honorable conditions. The DD Form 214 also shows a Separation Program Designator (SPD) code of JKQ and a reentry (RE) code of 3. 3. The applicant’s available record does not contain any recorded actions under the Uniform Code of Military Justice (UCMJ), unauthorized absences; time lost or negative counseling statements. However, he was separated as a PVT/E-1 and the action that caused his reduction is not contained in the service record. 4. On 7 May 2008, DA, Headquarters, Fort Stewart and Hunter Army Airfield, Fort Stewart, GA, Orders Number 128-0021, discharged the applicant from the Army effective 14 May 2008. EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD: 1. Discharge Orders Number 038-0029, dated 7 May 2008. 2. A DD Form 214, dated 14 May 2008. 3. An Enlistment/Reenlistment Document, 4 January 2007. EVIDENCE SUBMITTED BY THE APPLICANT: The applicant provided a DD Form 293 and DD Form 149. 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 "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 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 his discharge and a change to the narrative reason for separation to include the RE code was carefully considered. However, after examining the applicant’s record of service, his available military records and the issues submitted with the applications, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for separation to include the RE code. 2. The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process. 3. The DD Form 214 also indicates the applicant was discharged under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct (serious offense), with a characterization of service of general, under honorable conditions. Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 4. The applicant requested a change to his narrative reason for separation to include the RE code. 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 offense). The regulation further stipulates that no deviation is authorized. 5. A Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3. 6. The applicant contends he did not receive legal counsel prior to his discharge; he was told to just sign papers. There is insufficient evidence available in the official record to make a determination as to whether this contention has merit. 7. Further, 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 denied the right to consult with legal counsel. 8. The applicant desires to receive the GI Bill for school and to reenlist in the military. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. 9. Also, 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 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. 10. If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record. 11. Therefore, based on the available evidence and the government presumption of regularity, the reason for discharge and the characterization of service to include the RE code were both proper and equitable, the analyst recommends the Board deny relief. SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING: Type of Hearing: Records Review Date: 6 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) AR20140008534 Page 6 of 6 pages ARMY DISCHARGE REVIEW BOARD (ADRB) CASE REPORT AND DIRECTIVE 1