AR20140002014

IN THE CASE OF: Mr.

BOARD DATE: 6 February 2015

CASE NUMBER: AR20140002014
___________________________________________________________________________

Board Determination and Directed Action

1. After carefully examining the applicants record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined that the characterization of service was both proper and equitable and voted to deny relief.

2. Furthermore, notwithstanding the Discussion and Recommendation that the narrative reason be changed, the Board determined that although the applicant committed several acts of misconduct that was not enough reason for changing the narrative reason for discharge. Therefore, the Board voted to deny the changing of the applicant’s narrative reason for discharge.

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 discharge from general, under honorable conditions to honorable.

2. The applicant states, in effect, that his discharge was inequitable because it was based on minor offenses arising from a single incident which began a course of misconduct in approximately 48 months of service with no other adverse actions. He contends he was discharge under the provisions of Chapter 14-12c; however, he believes he should have been discharged under the provisions of Chapter 14-12b. He believes the punishment of restriction on 13 November 2010 and 3 January 2011 was for the same offenses. He also contends the Article 15 he received on 20 December 2010, contains invalid and unjustified information.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 24 January 2014
b. Discharge received: General, Under Honorable Conditions
c. Date of Discharge: 14 January 2011
d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200, Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment: 164th MP Co (R) Det 2, Joint Base Elmendorf- Richardson, AK
f. Current Enlistment Date/Term: 18 January 2007, 5 years (The applicant extended his enlistment 12 months on 1 October 2009)
g. Current Enlistment Service: 2 years, 11 months, 27 days
h. Total Service: 2 years, 11 months, 27 days
i. Time Lost: None
j. Previous Discharges: None
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 31B10, Military Police
m. GT Score: 98
n. Education: HS Graduate
o. Overseas Service: Southwest Asia
p. Combat Service: Iraq (080912-090902)
q. Decorations/Awards: ARCOM-2, AGCM, NDSM, ICM-w/2CS, GWOTSM, ASR, OSR
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 18 January 2007, for a period of 5 years. On 1 October 2009 he extended his enlistment for a period of 12 months. He was 19 years old at the time of entry and a high school graduate. His record indicates he served in Iraq; achieved the rank of SPC/E-4; and earned several awards to include two ARCOMs and the AGCM. He was serving at Joint Base Elmendorf-Richardson, AK when separation action was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1. The evidence contained in the applicants service record indicates on 10 January 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct (serious offense). Specifically for the following offenses:

a. repeatedly failing to be at his appointed place of duty at the prescribed time on at least 10 occasions,

b. disobeying orders from NCO’s to include the battalion Command Sergeant Major,

c. being disrespectful towards NCO’s, and

d. refusing to work even while being punished for previous misconduct.

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 10 January 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and 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 commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.

4. On 10 January 2011, the separation authority waived further rehabilitation and directed the applicants discharge with a characterization of service of general, under honorable conditions.

5. The applicant was discharged from the Army on 14 January 2011, 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 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:

1. Article 15, imposed on 21 October 2010, for failing to go at the time prescribed to his appointed place of duty x 5 (100629, 100811, 101004, 101014, and 101016) and making a false official statement to a noncommissioned officer (100701). Punishment consisted of reduction to E-2 and extra duty for 45 days (FG).

2. Article 15, imposed on 3 January 2011, for failing to go at the time prescribed to his appointed place of duty x 4 (101020, 101022, 101113, and 101115), being disrespectful in language towards a noncommissioned officer on four occasions (101113), and disobeying a lawful order from a noncommissioned officer x 2 on (101113). Punisment consisted of reduction to the grade of E-1, forfeiture of $337.00, extra duty for 14 days, and restriction for 14 days (suspended) (FG). The restriction portion of the punishment was reduced to 7 days on 6 January 2011.

3. A Report of Behavioral Health Evaluation, dated 4 January 2011, which indicates the applicant was diagnosed with PTSD (which existed prior to service). It was determined by the Behavioral Health Provider, the applicant had the mental capacity to understand and participate in the proceedings againist him and he was mentally responsible. It was also determined he was psychiatrically cleared for any administrative action deemed appropriate by his command.

4. Several negative counseling statements dated between 29 June 2010 and 15 November 2010, for failing to obey order and regulation, failing to obey a lawful order, failing to be at his appointed place of duty, disrespecting a senior noncommissioned officer, missing accountability formation, refusing to train, lying to a noncommissioned officer, reporting to formation with an odor of alcohol emitting from his breath, and failing to meet requirements

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, self-authored statement, copies of developmental counseling form’s (3), sworn statements (2), page from AR 27-10, paragraphs 3-10 thru 3-16, record of proceedings under Article 15, UCMJ, memorandums dated 13 November 2010, 2 December 2010, and 3 January 2011, breath analysis, dated 2 December 2010, and a copy of his DD Form 214 for 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 members 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 Soldiers 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 an SPD Code of “JKQ” will be assigned an RE Code of 3.

DISCUSSION AND RECOMMENDATION:

1. The applicants request for an upgrade of the characterization of service and a change to his narrative reason for discharge 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 record confirms that the applicants 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 misconduct, the applicant diminished the quality his service below that meriting a honorable discharge. The applicants record of service was marred by two Articles 15 for multiple violations of the Uniform Code of Military Justice and several negative counseling statements for failing to obey orders and regulations, failing to obey a lawful order, failing to be at his appointed place of duty, disrespecting a senior noncommissioned officer, missing accountability formation, refusing to train, lying to a noncommissioned officer, reporting to formation with an odor of alcohol emitting from his breath, and failing to meet requirements.
3. The applicant provided no independent corroborating evidence demonstrating that either the command’s action was erroneous or that the applicants service mitigated the misconduct or poor duty performance.

4. The applicant contends his discharge was inequitable because it was based on minor offenses arising from a single incident during 48 months of service. However, the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army. The applicants numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline.

5. The applicant contends he received non-judicial punishment twice for the same offenses and the the offenses on his 2 December 2010 counseling form were lies and fabrications. His contentions were noted; however, documents in the record show the applicant received developmental counseling on 13 November 2010 for failing to obey a lawful order, failing to be at his appointed place of duty and disrespecting a senior noncommissioned officer. The record also shows the applicant received two Article’s 15 (21 October 2010 and 3 January 2011). The two Article 15 documents support the dates on the developmental counseling forms dated 13 November 2010 and 2 December 2010.

6. 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 punished twice for the same offenses.

7. The applicant also requested his narrative reason for discharge be changed from misconduct (serious offense) to pattern of misconduct. The applicants record of service was marred by two Articles 15 for multiple violations of the Uniform Code of Military Justice (i.e. repeatedly failing to be at his appointed place of duty at the prescribed time on at least 10 occasions, disobeying orders from NCO’s to include the battalion Command Sergeant Major, being disrespectful towards NCO’s, and refusing to work even while being punished for previous misconduct), and several negative counseling statements for failing to obey orders and regulations, failing to obey a lawful order, failing to be at his appointed place of duty, disrespecting a senior noncommissioned officer, missing accountability formation, refusing to train, lying to a noncommissioned officer, reporting to formation with an odor of alcohol emitting from his breath, and failing to meet requirements.

8. In view of the foregoing and notwithstanding the propriety of the applicant’s discharge, the analyst recommends the Board grant partial relief in the form of a change to narrative reason for discharge from Chapter 14, paragraph 14-12c “misconduct (serious offense)” Chapter 14, paragraph 14-12b, “pattern of misconduct”.

9. However, the characterization of service being both proper and equitable, the analyst recommends the Board deny relief.

BOARD DETERMINATION AND DIRECTED ACTION:

1. After carefully examining the applicants record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined that the characterization of service was both proper and equitable and voted to deny relief.

2. Furthermore, notwithstanding the Discussion and Recommendation that the narrative reason be changed, the Board determined that although the applicant committed several acts of misconduct that was not enough reason for changing the narrative reason for discharge. Therefore, the Board voted to deny the changing of the applicant’s narrative reason for discharge.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review Date: 6 February 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) AR20140002014

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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