AR20160000296

1. Applicants Name:

a. Application Date: 4 December 2015

b. Date Received: 8 January 2016

c. Counsel: Yes

2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant through legal counsel requests an upgrade of his general, under honorable conditions discharge to honorable, that his narrative reason for discharge and reentry eligibility (RE) code be changed. The applicants legal counsel seeks relief contending, in effect, that the applicants separation was an act of reprisal and denial of his due process; the alleged misconduct does not amount to commission of a serious offense; the command failed to consider or evaluate the applicants potential for rehabilitation; and the applicants overall service was honorable. The applicant through legal counsel contends the applicants command separated him because he had knowledge of an adulterous relationship between two senior soldiers, one of whom was approaching retirement, and because the applicant had discussed reporting this adulterous relationship up through the chain of command. The applicant reported the adulterous relationship and was accused of misconduct the following day; that alleged misconduct served as the basis for his separation.

Evidence shows the applicant was an upstanding Soldier who was well-respected by his fellow comrades. Although the applicant stumbled three years prior to his discharge-something which he took full responsibility for-his mission-driven focus and dedication to the service allowed him to quickly move back up through the ranks. The applicant was an honorable Soldier who was seen as a threat to a command that had a reputation for self-service and corruption. The enclosures provided will show that the alleged misconduct which served as the basis for the applicants separation was manufactured by this command. After falsifying documents to substantiate the allegations against the applicant, the command guaranteed his separation by characterizing his service as under honorable conditions (general), thereby depriving him of the opportunity for review of the charges against him at an Administrative Separation Board. The command implicitly acknowledged the insufficient evidence against SGT Gunter by eliminating him in this backdoor fashion. If the crimes which the applicant allegedly committed were egregious enough to warrant immediate separation without counseling, opportunity for rehabilitation, or opportunity for the applicant to defend himself, it is wholly illogical that an under honorable conditions would have been appropriate. Instead, it is clear that the command used the under honorable conditions characterization to guarantee the applicant then-proposed separation would not be subject to review. Given the applicants separation constituted an act of reprisal, his discharge was unlawful and he must be granted relief.

In a records review conducted at Arlington, VA on 25 July 2016, and by a 4-1 vote, the Board determined the discharge is now inequitable. The Board found the overall length and quality of the applicant’s service, to include combat, and the circumstances surrounding his discharge (i.e. unit was arbitrary and capricious during the discharge process) mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Pattern of Misconduct.

(Board member names available upon request)

3. DISCHARGE DETAILS:

a. Reason/Authority/Codes/Characterization: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-3 / General, Under Honorable Conditions

b. Date of Discharge: 7 December 2012

c. Separation Facts: The applicants OMPF is void of his separation packet, therefore the necessary facts were taken from the documents submitted by the applicant.

(1) Date of Notification of Intent to Separate: 9 September 2012

(2) Basis for Separation: The applicant was informed of the following reasons: violating a lawful order from a commissioned officer and wrongfully committing adultery on or about 30 December 2009;

Being counseled for willfully disobeying a noncommissioned officer on 14 August 2012; and

Making a false official statement on 18 August 2012.

(3) Recommended Characterization: General, Under Honorable Conditions

(4) Legal Consultation Date: 9 September 2012

(5) Administrative Separation Board: Evidence shows the applicant requested an administrative separation board on 9 September 2012; however, he was not entitled to have his case heard by an administrative separation board because at the time he was not being considered for an under other than honorable conditions discharge

(6) Separation Decision Date/Characterization: NIF/ General, Under Honorable Conditions

4. SERVICE DETAILS:

a. Date/Period of Enlistment: 19 November 2009 / 3 years

b. Age at Enlistment/Education/GT Score: 24 / HS Graduate / 111

c. Highest Grade Achieved/MOS/Total Service: E-5 / 88M20, Motor Transport Operator / 4 years, 10 months, and 3 days

d. Prior Service/Characterizations: USAR, 5 February 2008 13 August 2008 / NA
RA, 14 August 2008-18 November 2009 / HD

e. Overseas Service/Combat Service: Hawaii, SWA / Iraq (8 September 2009 25 July 2010) and Afghanistan (18 January 2012 28 September 2012)

f. Awards and Decorations: ARCOM, AAM-3, MUC, AGCM, ACM-CS, NDSM, GWTSM, ICM-CS, OSR-2, ASR, NATO Medal

g. Performance Ratings: 1 February 2012 1 August 2012, Fully Capable

h. Disciplinary Action(s)/Evidentiary Record: NIF; however, the applicant submitted an incomplete Article 15 document.

DA Form 4856s (Developmental Counseling Forms), dated between 14 August 2012 and 1 September 2012, which were submitted by the applicant show he was counseled for failure to obey orders or regulation and notification of pending separation action.

i. Lost Time: None

j. Diagnosed PTSD/TBI/Behavioral Health: Report of Mental Status Report, dated 5 September 2012, which was submitted by the applicant shows he was diagnosed with an Axis I with an occupational problem and an Axis III with hypertension (uncontrolled). It was noted that at the time the applicant was responsible for his behavior, could distinguish between right and wrong, and possessed sufficient mental capacity to understand and participate in any administrative proceedings.

5. APPLICANT-PROVIDED EVIDENCE: An online application, dated 4 December 2015; and 23 enclosures: letter from counsel; DD Form 214, dated 7 December 2012; affidavits; memorandums of record; developmental counseling forms; sworn statements; an audio recording; IG documents; Article 15; commanders report and separation packet; certificates for completion of course of study; college transcripts; and a letter of recommendation.

6. POST SERVICE ACCOMPLISHMENTS: Evidence shows since the applicants discharge he has obtained an Associates Degree from the University of Hawaii and several course completion certificates.

7. REGULATORY CITATION(S): 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.

Paragraph 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial.

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).

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.

8. DISCUSSION OF FACT(S): The applicant through legal counsel requests an upgrade of his general (under honorable conditions) discharge to honorable and that his narrative reason for discharge and reentry eligibility (RE) code be changed. The applicants record of service, the issues and documents submitted with his application were carefully reviewed.
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.

The applicant requested that his narrative reason for separation and his reentry code be changed. However, the appropriate SPD code and reason to assign enlisted Soldiers who are discharged for misconduct (serious offense) is JKQ and the RE code is 3. The regulation further stipulates that no deviation is authorized.

The applicants legal counsel seeks relief contending that the applicants separation was an act of reprisal because he had knowledge of an adulterous relationship between two senior soldiers, one of whom was approaching retirement and denial of his due process. 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 his discharge was the result of an act of reprisal and denial of his due process. In fact, evidence of record shows separation action was initiated on the applicant as a result of him violating a lawful order from a commissioned officer and wrongfully committing adultery on or about 30 December 2009, being counseled for willfully disobeying a noncommissioned officer, and making a false official statement. These acts of misconduct do warrant discharge for misconduct.

Further, the applicant contends he was not afforded due process of having his case heard by an administrative separation board. The applicant was not afforded an administrative separation board because as stated in the documents he submitted, dated 9 September 2012, he understood that if he had less than six years of total active and reserve service at the time of separation, under AR 635-200, Chapter 12-12c, he was not entitled to have his case heard by an administrative separation board unless he was being considered under other than honorable conditions. Evidence in the record shows the applicant had 4 years, 7 months, and 5 days of total service when he was notified of initiation of separation action and 4 years, 10 months, and 3 days of total service on the day of separation.

The applicant contends the alleged misconduct does not amount to commission of a serious offense. However, the service record indicates the applicant committed several 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.

The applicant contends the command failed to consider or evaluate the applicants potential for rehabilitation and that the applicants overall service was honorable. However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.

Furthermore, it should be noted; by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct (serious offense). It appears the applicants generally good record of service was the basis for his receiving a GD instead of the normal UOTHC discharge.
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.

The discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process.

9. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 25 July 2016, and by a 4-1 vote, the Board determined the discharge is now inequitable. The Board found the overall length and quality of the applicant’s service, to include combat, and the circumstances surrounding his discharge (i.e. unit was arbitrary and capricious during the discharge process) mitigated the discrediting entry in his service record. Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Pattern of Misconduct.

10. BOARD ACTION DIRECTED:

a. Issue a New DD-214: Yes

b. Change Characterization to: Honorable

c. Change Reason to: Pattern of Misconduct

d. Change SPD/RE Code to: JKA

e. Restore (Restoration of) Grade to: NA

AUTHENTICATING OFFICIAL:

COL, US ARMY
Presiding Officer
Army Discharge Review Board

Legend:
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
BH Behavioral Health HD – Honorable Discharge OAD – Ordered to Active Duty SPD – Separation Program Designator
CG – Company Grade Article 15 IADT – Initial Active Duty Training OMPF – Official Military Personnel File TBI Traumatic Brain Injury
CID – Criminal Investigation Division MP Military Police PTSD Post-Traumatic Stress Disorder UNC – Uncharacterized Discharge
ELS Entry Level Status MST Military Sexual Trauma RE – Reentry UOTHC – Under Other Than Honorable Conditions
FG – Field Grade Article 15

ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE
AR20160000296

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