Applicant Name:  ?????

Application Receipt Date: 2011/11/03	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, it has been more than 10 years since his discharge.  His Article 15 and discharge was used to set an example to the rest of the company.  Upon his discharge, his unit had four more Congressional Inquiries.  The commanding officer was passed over twice for promotion.  The company failed to meet annual requirements and proficiency training that was required by the Army regulations.  The company expedited his discharge so that he could not obtain a medical review board for a back injury sustained on duty.  The VA benefits were determined at 10% for the rest of his life. 

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: 981125
Discharge Received: 			   Date: 990114   Chapter: 14-12b       AR: 635-200
Reason: Misconduct	   RE:     SPD: JKA   Unit/Location: 115th Field Hospital, Fort Polk, LA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 981005, failed to go to his appointed place of duty at the appointed time (980915); disobeyed a lawful order from a SSG, noncommissioned officer x 2 (980916 and 980917); reduction to E-2, forfeiture of $242.00 x 1 (suspended), extra duty and restriction for 14 days. (CG)

981102, failed to go to his appointed place of duty at the appointed time (981024); extra duty for 14 days. (Summarized Article 15)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  20
Current ENL Date: 970304    Current ENL Term: 04 Years  ?????
Current ENL Service: 	01 Yrs, 10 Mos, 11 Days ?????
Total Service:  		04 Yrs, 04 Mos, 26 Days ?????
Previous Discharges: 	ARNG-940818-960603/NA
                                      ADT-960604-960827/NA
                                      ARNG-960828-970303/NA
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 91B10 Medical Specialist   GT: 108   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: ARCOM, NDSM, ASR

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None listed by the applicant



VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 16 November 2008, 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 pattern of misconduct for receiving a Company Grade Article 15 for failing to repair (FTR) and disobeying an order from an NCO (981005); receiving a Summarized Article 15 for FTR (981102); FTR x 8 (971006, 971008, 971210, 980618, 980714, 980717, 980808, and 981024); failing to perform personal hygiene prior to work call formation (980407); failing to follow instructions (980421 and 980803); uttering a worthless check (980423 and 980803); failing to obey an order from an NCO (980714); and failing to pay a just debt (980805), with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 16 November 1998, 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 of the separation with a general, under honorable conditions discharge.  
       
       On 17 December 1998, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

       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, and the issue 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 the former Soldier’s 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 contends it has been more than 10 years since his discharge.  His Article 15 and discharge was used to set an example to the rest of the company.  The analyst noted the applicant's issues; however, the U.S. Army does not have, nor has it ever had, a policy to upgrade a discharge based on time elapsed since the discharge.  Each case is decided on its own merits based on all factors contained in the OMPF or as submitted by the applicant.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  Furthermore, 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 issue.  There is no evidence in the record, nor has the applicant produced any evidence or documentation to support the contention that he was unjustly discharged.  In fact, the applicant’s two Article 15s under the Uniform Code of Military Justice and numerous negative counseling statements justifed a pattern of misconduct.  The applicant’s statement alone does not overcome the government’s presumption of regularity in this case.  
       
       Further, the applicant contends his company expedited his discharge so that he could not obtain a medical review board for a back injury sustained on duty.  The VA benefits were determined at 10% for the rest of his life. However, 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.  Additionally, there is no evidence of record and the applicant has submitted no probative medical evidence that he had a medical problem which would have rendered him disqualified for further military service and that he was not able to perform his duties, with either medical limitation or medication.  
       
       Therefore, the analyst determined 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: 18 May 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293; DD Form 214; seven pages of the applicant's discharge packet; a copy of a Congressional Inquiry, dated 8 January 1999; a copy of a Congressional Inquiry, dated 1 November 2011; a copy of an ARCOM, dated 18 November 1996; and a copy of a certificate from the Emergency Medical Technician-Basic, dated 10 October 1997 




























  

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: NA

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 AR20110022071
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