AR20140001592

IN THE CASE OF: Mr.

BOARD DATE: 24 November 2014

CASE NUMBER: AR20140001592
___________________________________________________________________________

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 APPLICANTS REQUEST AND STATEMENT:

1. The applicant requests an upgrade of his uncharacterized discharge to honorable and a change to his narrative reason for discharge.

2. The applicant states, in effect, that he was unjustly discharge. He contends he would like an upgrade of his discharge for the purpose of being able to reenlist. He contends he did not refuse to train only not to restart. He believes the characterization he has is a misrepresentation of his discharge. After refusing to restart, he signed disciplinary paperwork that lead to his discharge. He is now struggling to reenlist in the Army because of his narrative reason for discharge. He contends he made mistakes throughout his life and has learned and grown from them; as he has with this situation.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 22 January 2014
b. Discharge received: Uncharacterized
c. Date of Discharge: 6 October 2011
d. Reason/Authority/SPD/RE: Entry Level Performance and Conduct, Chapter 11, AR 635-200, JGA, RE-3
e. Unit of assignment: A Co, 2nd Bn, 330th IN Rgt, Fort Benning, GA
f. Current Enlistment Date/Term: 29 June 2011, 6 years and 16 weeks
g. Current Enlistment Service: 3 months, 8 days
h. Total Service: 3 months, 8 days
i. Time Lost: None
j. Previous Discharges: None
k. Highest Grade Achieved: E-3
l. Military Occupational Specialty: None
m. GT Score: 111
n. Education: HS Graduate
o. Overseas Service: None
p. Combat Service: None
q. Decorations/Awards: None
r. Administrative Separation Board: No
s. Performance Ratings: None
t. Counseling Statements: Yes
u. Prior Board Review: No
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 29 June 2011, for a period of 6 years and 16 weeks. He was 19 years old at the time of entry and a high school graduate. He was attending basic training at Fort Benning, GA when his separation was initiated. His record documents no acts of valor or significant achievements.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence of record shows that on 27 September 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 11, AR 635-200, by reason of entry level performance and conduct for his refusal to train.

2. Based on the above misconduct, the unit commander recommended the applicants separation from the Army with an uncharacterized discharge and advised him of his rights.

3. On 27 September 2011, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, and did not submit a statement on his behalf. The unit commander subsequently recommended the applicants discharge and waiver of further rehabilitative efforts.

4. On 28 September 2011, the separation authority waived further rehabilitation and directed the applicants separation from the Army with an uncharacterized discharge.

5. The applicant was discharged from the Army on 6 October 2011, with an uncharacterized discharge under the provisions of Chapter 11, AR 635-200, for entry level performance and conduct, with a Separation Program Designator code (SPD) of JGA and an RE code of 3.

6. The applicants service record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

Three negative counseling statements dated between 1 September 2011 and 25 September 2011, for disobeying a lawful order and regulation, restart recommendation, refusal to train/restart, and recommendation for entry level separation.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, dated 17 January 2014.

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. Paragraph 3-9 contains guidance on entry level separations. It states a separation will be described as entry-level with service uncharacterized if, at the time separation action is initiated, the Soldier has less than 180 days of continuous active duty service.

2. Chapter 11 of Army Regulation 635-200 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry level status (ELS). An uncharacterized service description is normally granted to Soldiers separating under this chapter.

3. A general discharge (GD) under honorable conditions discharge is not authorized under ELS conditions and an honorable discharge (HD) is rarely ever granted. An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.

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 “JGA” as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 11, for entry level performance and conduct.

5. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of “JGA” will be assigned an RE Code of 3.

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of the characterization of his discharge and change to narrative reason was carefully considered. However, after examining the applicants record of service, 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 evidence of record confirms the applicants separation processing was accomplished in accordance with the applicable regulation. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the uncharacterized description of service accurately reflects the applicants overall record of service. An uncharacterized discharge is neither positive nor negative and it is not meant to be a negative reflection of a Soldiers military service. It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.

3. The separation authority approved the applicant’s discharge as entry-level status, with the description of service as uncharacterized. Army Regulation 635-200 provides in pertinent part, that a Soldier is in entry-level status for the first 180 days of continuous active duty. The purpose of the entry-level status is to provide the Soldier a probationary period. Soldiers who are found to lack the necessary motivation, adaptability, self-discipline, ability, or attitude to become productive Soldiers may be expeditiously separated while in entry-level status. The regulation also provides, except in cases of serious misconduct, that a Soldiers service will be uncharacterized when the separation is initiated while the Soldier is in entry level status.

4. A general, under honorable conditions discharge is not authorized under ELS conditions and an honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct or performance of duty. The applicants service record indicates no such unusual circumstances were present and did not warrant an honorable discharge.

5. The applicant requests a change to the reason for his discharge; however, the narrative reason for separation is governed by specific directives. The applicant was discharged under the provisions of Chapter 11, paragraph 11-3a, AR 635-200. The narrative reason specified by Army Regulations for a discharge under this paragraph is “Entry Level Perforance and Conduct,” and the separation code is “JGA.” 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 entered 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 was no provision for any other reason to be entered under this regulation.

6. The applicant contends he was unjustly discharged. 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 discharged.

7. The applicant expressed a desire for an upgrade of his discharge for the purpose of being able to reenlist. However, 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.

8. The record does not contain any indication or evidence of arbitrary or capricious actions by the command. The character of the applicants discharge is commensurate with his overall service record.

9. Therefore, the reason for discharge and the characterization of service being both proper and equitable, the analyst recommends the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 24 November 2014 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) AR20140001592

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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