AR20140002389

IN THE CASE OF: Mr.

BOARD DATE: 15 December 2014

CASE NUMBER: AR20140002389
___________________________________________________________________________

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. Counsel requests an upgrade of the applicants general, under honorable conditions discharge to honorable, a change to the narrative reason and reentry code.

2. Counsel states, in effect, the charges against the applicant for assaulting his wife was dismissed by a civilian court. He states the applicants chain of command separated him although his wife recanted her allegation and therefore his separation was premature. Counsel contends the applicant was denied due process when he was not given the opportunity to defend himself in front of his chain of command. The applicant states in his self-authored statement contained in counsels request, that his elimination prevents him from using the Montgomery GI Bill and from obtaining prospective employment from many people who were interested in hiring him. He states he is still in pursuit of a college degree however, his finances are still an issue and he is accumulating debt. He states an upgrade of his discharge would guarantee these issues are resolved. Counsel requests an upgrade of the applicants discharge, a change to the narrative reason and reentry code, a refund of all monies paid to date, and to have the applicants tax garnishment stopped.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 3 February 2014
b. Discharge Received: General, Under Honorable Conditions
c. Date of Discharge: 18 May 2011
d. Reason/Authority/SPD/RE Code: Misconduct (Serious Offense), AR 635-200,
Chapter 14-12c, JKQ, RE-3
e. Unit of assignment: HHC, 1st Brigade Special Troops Battalion,
Fort Bragg, NC
f. Current Enlistment Date/Term: 22 August 2007/4 years
g. Current Enlistment Service: 3 years, 8 months, 21 days
h. Total Service: 3 years, 8 months, 21 days
i. Time Lost: 6 days
j. Previous Discharges: None
k. Highest Grade Achieved: E-4
l. Military Occupational Specialty: 92A1P, Automated Logistical Specialist
m. GT Score: 106
n. Education: HS Graduate
o. Overseas Service: SWA
p. Combat Service: Iraq (090825-100724)
q. Decorations/Awards: ARCOM, MUC, NDSM, GWOTSM, ICM-CS,
ASR, OSR
r. Administrative Separation Board: NA
s. Performance Ratings: NA
t. Counseling Statements: Yes
u. Prior Board Review: No
SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 22 August 2007, for a period of 4 years. He was 21 years old at the time of entry and a high school graduate. He served in Iraq, earned an ARCOM and completed 3 years, 8 months, 21 days of active duty service. When his discharge proceedings were initiated, he was serving in Fort Bragg, North Carolina.

SEPARATION FACTS AND CIRCUMSTANCES:

1. On 17 March 2011, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, for misconduct (serious offense). Specifically for committing the offense of assault consummated by a battery on multiple occasions.

2. Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge.

3. On 24 March 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement in 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 12 April 2011, the separation authority waived further rehabilitative efforts and directed the applicants discharge with a characterization of service of general, under honorable conditions.

5. The applicant was separated on 18 May 2011, under Army Regulation 635-200, Chapter 14-12c, with a general, under honorable conditions discharge, an SPD code of JKQ, and an RE code of 3.

6. The applicant’s record shows he was absent without leave (AWOL) during the period 2 January 2011 through 7 January 2011. He was arrested by civilian police for domestic violence. His duty status changed from present for duty (PDY) to confined effective 2 January 2011 and changed from confined to PDY effective 8 January 2011.

EVIDENCE OBTAINED FROM THE APPLICANT’S RECORD:

1. Two DA Forms 4187 (Personnel Actions), dated 4 January 2011 and 12 January 2011, changed the applicants duty status from PDY to confined and from confined to PDY.

2. Two negative counseling statements, dated 3 January 2011 and 15 March 2011, for continued issues with domestic violence and controlled movement.

3. MEDCOM Form 4038 (Report of Behavioral Health Evaluation), dated 21 January 2011, reflects the applicant had a clear and normal thought process, was mentally responsible, and had no diagnosis of a psychiatric condition. He had a negative screening for Post Traumatic Stress Disorder (PTSD) and mild Traumatic Brain Injury (mTBI).

4. Fayetteville Police Department Incident/Investigation Report, dated 12 July 2009, reflects the applicant was the subject of an investigation for simple physical assault.

5. Command Critical Incident Report (CCIR), dated 2 January 2011, reflects the applicant was arrested for assault by strangulation.

EVIDENCE SUBMITTED BY THE APPLICANT:

Counsel provided a DD Form 293 and statement, dated 28 January 2014, a DD Form 214, a copy of police record, a partial discharge packet, an email, dated 7 August 2011, a statement from the applicant, a statement from Mrs. A, dated 25 June 2013, CCIR, dated 22 January 2011, a criminal record check, an Enlisted Record Brief, dated 10 January 2011, and five letters of support.

POST-SERVICE ACTIVITY:

The applicant did not provide any in support of 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 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. Counsels request for an upgrade of the characterization of the applicants discharge was carefully considered. However, after examining the applicants 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 or a change to the narrative reason and reentry code.

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 of his service below that meriting a fully honorable discharge. The applicants record of service was marred by two negative counseling statements, two arrests, a CCIR and civilian police report reflecting he was the subject of investigation for assault by strangulation and simple physical assault.

3. Counsel 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. Counsels request for a change to the narrative reason and reentry code was also carefully considered. 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 “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. Further, 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.

6. Counsel contends the chain of command denied the applicant due process because he was prematurely separated even though the charges were dismissed by a civilian court. However, 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 applicants discharge is commensurate with his overall service record.

7. Counsel further requests a refund of all monies paid to date by the applicant and to have the tax garnishment as a result of the applicants discharge stopped. However, the issue counsel submitted is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued. Counsel may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter. A DD Form 149 may also be obtained from a Veterans’ Service Organization.

8. The applicant, in his self-authored statement, expressed his desire to have better job opportunities and to use the benefits of the GI Bill. However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. Further, 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. The records show the proper discharge and separation authority procedures were followed in this case.

10. Therefore, the reason for discharge, reentry code 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: 15 December 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) AR20140002389

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE

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