Applicant Name:  ?????

Application Receipt Date: 2011/10/31	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he requests an upgrade of his discharge to fully honorable and a change to the narrative reason for separation.  He contends he was wrongfully discharged for being arrested for driving under the influence (DUI); he was found not guilty and the commander still chaptered him out.  He further contends his discharge is preventing him from obtaining employment in Afghanistan.    

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 050513
Discharge Received: 			   Date: 050701   Chapter: 14-12b       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKA   Unit/Location: HHT, 3-229th AV Regt, Fort Bragg, NC 

Time Lost: None

Article 15s (Charges/Dates/Punishment): None

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  23
Current ENL Date: 030607    Current ENL Term: 04 Years  ?????
Current ENL Service: 	02  Yrs, 00  Mos, 25  Days ?????
Total Service:  		04  Yrs, 02  Mos, 21  Days ?????
Previous Discharges: 	RA-010411-030606/HD
Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 92G20 Food Service Spec   GT: 94   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: AAM-2, NDSM, GWOTSM, NCOPDR, ASR

V.  Post-Discharge Activity
City, State:   
Post Service Accomplishments: The applicant submitted a document that indicated he is employed as the Senior Food Service Supervisor on contract in Afghanistan. 

VI.  Facts, Circumstances, and Legal Basis for Separation
       a.  Facts and Circumstances:
       The evidence of record shows that on 13 May 2005, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of a pattern of misconduct for DUI x 2 (041219), (040828); being drunk and disorderly (020505); failing to obey a lawful order (020505); and receiving a GOMOR, with an honorable discharge.  He was advised of his rights.
         
       On 16 May 2005, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and indicated he intended to submit a statement in his own behalf.  The unit commander subsequently recommended separation from the service and waiver of further rehabilitative efforts.  The intermediate commander reviewed the proposed action and recommended approval of the separation with a general, under honorable conditions discharge.  
       On 1 June 2005, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.
       
       The applicant's record contains a General Officer Memorandum of Reprimand (GOMOR), dated 6 January 2005, for driving while impaired with a blood alcohol content of .11% (Administrative). 
       
       The applicant's record contains a Military Police Report, dated 28 August 2004, 
       
       b.  Legal Basis for Separation:  
       Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation 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 absence 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.   

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records during the period of enlistment under review, the issues and documents submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge.  
       
       The analyst determined that the applicant’s 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.  By the misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.
       
       The applicant requested a change to the narrative reason for separation.  The narrative reason for separation is governed by specific directives.  The applicant was discharged under the provisions of Chapter 14, paragraph       14-12b, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct," the separation code is "JKA," and the reentry code is "RE 3."  
       
       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, separation code, entered in block 26, and RE Code, entered in block 27 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 is no provision for any other reason to be entered under this regulation. 
       
       The applicant contends he was wrongfully discharged for being arrested for driving under the influence (DUI); he was found not guilty and the commander still chaptered him out.  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 his contention.  There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that he was unjustly discharged.  
       
       Further,  Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge is authorized for the same or a closely related offense under the Manual for Courts Martial.
       
       Also,  the analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       The applicant additionally contends his discharge is preventing from obtaining employment in Afghanistan. The Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  
       Therefore, the analyst determined that the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief.   

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 		Date: 16 May 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated (111029); two (2) Disposed Citations, dated (090420); Character Statement, dated (110628); and a Letter of Commendation, dated (110625). 

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant's record of service during the period of enlistment under review and considering the analyst's recommendation and rationale, the Board determined that the discharge was both proper and equitable and voted to deny relief.
        
IX.  Board Decision						
Board Vote:
Character - Change 0    No change 5
Reason -     Change 0    No change 5
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: No Change
Other: NA
RE Code: 
Grade Restoration:   No   Yes   Grade: None

XI.  Certification Signature
Approval Authority:




EDGAR J. YANGER
Colonel, U.S. Army
President, Army Discharge Review Board




BONITA E. TROTMAN
Lieutenant Colonel, U. S. Army
Secretary Recorder
?????
Legend:
AWOL    	Absent Without Leave		GCM   General Court Martial	NA   Not applicable			SCM	Summary Court Martial
BCD   	Bad Conduct Discharge	GD      General Discharge	NIF   Not in the file			SPCM	Special Court Martial
CG 	Company Grade Article 15	HD      Honorable Discharge	OAD   Ordered to Active Duty		UNC	Uncharacterized Discharge  
DD 	Dishonorable Discharge	HS       High School Graduate	OMPF   Official Military Personnel File	UOTH  	Under Other Than Honorable 
FG	Field Grade Article 15		IADT   Initial Active Duty Training	RE     Reentry Code				Conditions 
ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20110021850
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