1. Applicants Name:
a. Application Date: 4 February 2016
b. Date Received: 8 February 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 and a change to his narrative reason for separation and reentry eligibility (RE) code. The applicant seeks relief contending, in effect, he would like an upgrade of his discharge for the purpose of being able to serve again. The applicant contends his discharge generally impinge upon a stellar history of redemption from alcohol and Army policies that encourage rehabilitation and not separation. The applicant takes personal responsibility for his actions, as he always has for his shortcomings, and with that, forthrightly seeks to continue in treatment if required in this case. He contends his discharge was not required by the law, in fact the law discouraged it, and the applicant was undeniably a victim of the drawdown; the applicant incident of misconduct was a onetime event that should not stigmatized the remainder of his life and his positive contributions to the service.
In a records review conducted at Arlington, VA on 22 August 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable.
(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: 30 October 2014
c. Separation Facts:
(1) Date of Notification of Intent to Separate: 21 July 2014
(2) Basis for Separation: The applicant was informed of the following reasons: committing a serious offense for which the specific circumstances of the offense warrant separation and a punitive discharge; specifically, operating a motor vehicle while under the influence of alcohol on or about 2 May 2014 with a breath alcohol content (BAC) of .136 percent.
(3) Recommended Characterization: General (Under Honorable Conditions)
(4) Legal Consultation Date: 21 July 2014
(5) Administrative Separation Board: NA
(6) Separation Decision Date/Characterization: 2 October 2014 / General (Under Honorable Conditions)
4. SERVICE DETAILS:
a. Date/Period of Enlistment: 28 January 2013 / 3 years and 16 weeks
b. Age at Enlistment/Education/GT Score: 21 years / HS Graduate / 102
c. Highest Grade Achieved/MOS/Total Service: E-3 / 11B10, Infantryman / 1 year, 9 month, and 1 day
d. Prior Service/Characterizations: None
e. Overseas Service/Combat Service: Alaska / None
f. Awards and Decorations: NDSM, GWOTSM, ASR
g. Performance Ratings: None
h. Disciplinary Action(s)/Evidentiary Record: Court Documents from the District Court for the State of Alaska Fourth Judicial District at Fairbanks (Misdemeanor Complaint), dated 2 May 2014, which shows the applicant was charged with driving while under the influence of an alcoholic beverage, inhalant, or any controlled substance.
Military Police Report, dated 6 May 2014, which indicates the applicant was the subject of investigation for driving under the influence on 2 May 2014.
General Officer Memorandum of Reprimand, dated 22 May 2014, which indicates the applicant was reprimanded for driving under the influence of alcohol in Fairbanks, Alaska, on 2 May 2014, with a breath alcohol content of .136 percent.
Several counseling statements, dated between 2 May 2014 and 19 June 2014, for being charged with DUI and recommendation for separation as a result of a DUI.
i. Lost Time: Confinement by civilian authority one day (2 May 2014 3 May 2014)
j. Diagnosed PTSD/TBI/Behavioral Health: DA Form 3822 (Report of Mental Status Evaluation), dated 7 May 2014, indicates the applicant was eligible for administrative separation in accordance with AR 635-200 from a behavioral health perspective.
5. APPLICANT-PROVIDED EVIDENCE: A DD Form 293, dated 4 February 2016; legal brief from counsel, dated 4 February 2016; and power of attorney relating to legal representation, dated 19 September 2015.
6. POST SERVICE ACCOMPLISHMENTS: None.
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 a change to his narrative reason for separation and reentry eligibility (RE) code. The applicants record of service, the documents and the issues submitted with the application were carefully reviewed.
The record confirms 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 appropriate SPD code and narrative reason to assign enlisted Soldiers who are discharged for misconduct (serious offense) is JKQ and the RE code is 3. The regulation further stipulates no deviation is authorized.
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.
The applicant seeks relief contending, his discharge generally impinge upon a stellar history of redemption from alcohol and Army policies that encourage rehabilitation and not separation and that he was a victim of the drawdown. 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 unlawful or that he was the victim of a drawdown.
In fact, evidence in the record shows that on 1 May 2014, prior to his DUI charge, the applicant and other members of his company were given a safety brief where the commander CPT L. made it very clear that the unit as Soldiers should not abuse the use of alcohol and if they do decide to consume alcohol will have a plan and ensure to follow through with their plan. Not only did the applicant have a company safety brief he also had a platoon safety brief from 1LT B., urging the platoon to follow through with their plans especially under the influence and if they were to deviated from their plan to notify their chain of command of its changes.
AR 600-85, paragraph 10-6c(5) states that when the unit commander determines that a Soldier who has never been enrolled in the ASAP lacks the potential for further useful service, the Soldier will be evaluated by the ASAP counseling staff in accordance with this regulation. If found nondependent, the Soldier will be considered for separation under the appropriated provision of appropriated enlistment regulation.
Evidence in the record shows the applicant was aware of the Armys/units policy not to abuse alcohol and by his misuse compromised the special trust and confidence placed in a Soldier. The applicant, as a Soldier, had the duty to support and abide by the policies and by his abuse, the applicant knowingly risked a military career that ultimately caused his discharge from the Army.
The applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.
The applicant through legal counsel expressed his desire for an upgrade of his discharge for the purpose of being able to serve again. 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 are 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.
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. DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.
a. The applicant submitted the following additional documents:
1. Supplemental Brief 7 pages
2. Supplemental Exhibits 24 pages
3. Prior ADRB Opinions 54 pages
b. The applicant presented the following additional contentions:
Change RE-Code to 1 and change separation code by non-binding memo to ABCMA JFF/Secretarial Authority
c. Witness: Yes (father)
10. BOARD DETERMINATION: In a records review conducted at Arlington, VA on 22 August 2016, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable.
11. BOARD ACTION DIRECTED:
a. Issue a New DD-214: No
b. Change Characterization to: No Change
c. Change Reason to: No Change
d. Change SPD/RE Code to: No Change
e. Restore (Restoration of) Grade to: NA
COL, US ARMY
Army Discharge Review Board
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