Applicant Name:  ?????

Application Receipt Date: 2011/11/14	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, he is requesting an upgrade to his discharge because of the following reasons:

1.  His discharge is improper because in his separation recommendation, it states in item 1f that he left an appointed place of duty by using a U.S. Government owned vehicle without proper authorization which is completely false and caused prejudice in the characterization of his discharge.

2.  His discharge is improper because in his recommendation, it states in item 1f that he was repeatedly disrespectful to senior noncommissioned officers which is also false and caused prejudice when the characterization of his discharge was being decided.

3.  His discharge was improper because the counseling involving his living situation included a FG Article 15 that was used to demonstrate a pattern of misconduct in his Chapter packet.  This was inappropriate because the order was unlawful and he had no duty to obey.  Therefore, it should have been excluded from his FG Article 15 and his separation packet.

4.  His discharge was improper because the counseling involving loss of a sensitive item (06 July 2010) did not contain the mandatory statement required under paragraph 1-16 of AR 635- 200 like other counselings.  Also counseling did not warn that UCMJ actions could be initiated.

5.  His discharge was improper because counseling revolving around a messy barracks room was not properly filled out with his information and also gave guidance as to which articles of UCMJ he violated which should not be on counseling as it causes prejudice in Article 15 proceedings.

6.  His discharge was improper because the rehabilitative measures outlined in AR 635-200, 1-16, (c) 2 were not followed, which are required prior to separation proceedings.

7.  His discharge was inequitable because there was never any follow-up done after any counseling except for one where the assessment done.  This was not shown to him nor was it signed signifying that he was aware of it.  Notice the date of the assessment done on the counseling, dated 1 July 2010 and how it correspondes with the dates of his other counseling statements.

8.  His discharge was inequitable because 4 out of the 6 total counseling statements that were used to send him to Rear Detachment for separation proceeding were written in 48 hours and also used in his first and only Article 15.

9.  His discharge was inequitable because it was based on minor infractions that overshadowed over 1200 days of honorable service to the military including a deployment.

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: 101018
Discharge Received: 			   Date: 101109   Chapter: 14-12b       AR: 635-200
Reason: Pattern of Misconduct	   RE:     SPD: JKA   Unit/Location: A Company, 4th Brigade Combat Team, Fort Hood, TX
 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 100727, failed to go to his place of duty at a prescribed time (100704); disobeyed a lawful order from a SSG, noncommissioned officer (100111); derelict in the performance of duty x 2 (100708 and 100708); and through neglect, lost military property x 2, the value of $4.00 and $30.00 (100407 and 100629), reduction to E-2, forfeiture of $811.00 x 2 (suspended), extra duty and restriction for 30 days. (FG) 

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  18
Current ENL Date: 070606    Current ENL Term: 05 Years  ?????
Current ENL Service: 	03 Yrs, 05 Mos, 04 Days ?????
Total Service:  		03 Yrs, 05 Mos, 04 Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 35G10 Imagery Analyst   GT: 123   EDU: E-4   Overseas: SWA   Combat: Iraq (080610-090606)
Decorations/Awards: AAM, NDSM, ICM-w/2CS, GWOTSM, ASR, OSR, MUC

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 13 October 2010, 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 misconduct for repeatedly been disrespectful to senior noncommissioned officers, failing to report to his appointed place of duty, and leaving his appointed place of duty by using a U.S. Government owned vehicle without proper authorization, with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       The applicant waived the right to consult with legal counsel, waived his rights to an administrative separation board even though he was not entitled to one, 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 22 October 2010, 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.  
       
       Issues 1-3 are rejected.  The applicant contends that he was unjustly and unfairly discharged.  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 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 Article 15 under the Uniform Code of Military Justice and numerous negative counseling statements justify a pattern of misconduct.  The applicant’s statement alone does not overcome the government’s presumption of regularity in this case.  
       
       Issues 4, 5, 7 and 8 are rejected.  The applicant noted issues or errors with the counseling procedures or process.  However, notwithstanding these errors, the analyst concluded that the rights of the applicant were not prejudiced by the error on file in this case.  Department of Defense Directive 1332.28 stipulates that a discharge is proper unless the errors were prejudicial errors.  The applicant had a record of misconduct and substandard performance of duty with few significant favorable entries in the record.  The evidence did not create a substantial doubt that the discharge would have been any different if the error had not been made.  Moreover, the analyst found no evidence of arbitrary or capricious actions by the command and was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       Issues 6 and 9 are rejected.  The applicant contends his discharge was improper because rehabilitative measures were not followed.  However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements states, that 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.  After reviewing the applicant’s discharge packet, the separation authority properly waived the rehabilitative requirements.  Moreover, the evidence of record shows that the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.
       
       Additionally, the applicant contends his discharge was inequitable because it was based on minor infractions that overshadowed over 1200 days of honorable service to include a deployment.  The analyst noted that even though the applicant received a single FG Article 15 and had been counseled for what he considered to be minor infractions, the discrediting entries constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states that there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The analyst having examined all the circumstances determined that the applicant's single FG Article 15 did indeed adversely affect the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  This FG Article 15 and other infractions clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge.  Further, the analyst acknowledges the applicant’s in-service accomplishments and considered the quality of his service during the initial portion of the enlistment under review; however, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge.
       
              Moreover, The applicant contends that the narrative reason for his discharge should be changed.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12b, AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Pattern of Misconduct", and the separation code is "JKA."  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 and separation code, entered in block 26 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.  
       
       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: 23 May 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, DD Form 214; a self-authored statement, 5 pages; a copy of portions of the discharge packet, six pages; and a support letter, 2 pages

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 AR20110022604
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