Applicant Name:  ?????

Application Receipt Date: 2011/12/02	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 his discharge is invalid.  He desires to receive VA benefits.  He further contends his 1SG disliked and treated him unfairly.  He contends being an accomplished Soldier with three tours in Iraq and awarded many awards and decorations. 

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: 110509
Discharge Received: 			   Date: 110613   Chapter: 14-12c       AR: 635-200
Reason: Misconduct (Serious Offense)	   RE:     SPD: JKQ   Unit/Location: HHD, 2-10th Special Forces Group (Airborne), Fort Carson, CO 

Time Lost: AWOL for a total of 45 days; (110131-110315), apprehended.

Article 15s (Charges/Dates/Punishment): 110406, without authority, absented himself from his unit (AWOL) 
(110131-110315); extra duty for 7 days (suspended), (CG).

110121, violated a lawful general order, by wrongfully using perscription medication, to wit Tramadol, without a valid prescription (110108); and  wrongfully using a substance, to wit, seven (7) Nyquil tablets, for the purpose of inducing the stupefaction of his central nervous system (110108); and without authority, failed go at the time prescribed to his appointed place of duty (100117); reduction to E-1, forfeiture of 1 month pay (suspended), extra duty for 45 days (suspended) , restriction for 45 days (suspended), (FG). 

100419, with intent to deceive, made a false official statement to a CPT x 2 (100310), (100409); and wrongfully marrying PFC ED, at the time of said marriage had a lawful living wife (100409); reductIon to E-3, forfeiture of $431 pay x 1 month (suspended), extra duty for 14 days and restriction for 14 days, (CG).

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  19
Current ENL Date: 070521    Current ENL Term: 04 Years  ?????
Current ENL Service: 	03  Yrs, 11  Mos, 08  Days ?????
Total Service:  		03  Yrs, 11  Mos, 08  Days ?????
Previous Discharges: 	None
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 92A1P Automated Logistical Spec   GT: 88   EDU: HS Grad   Overseas: Southwest Asia   Combat: Iraq (091013-100114), (080517-090121), (101005-110630)
Decorations/Awards: ARCOM, JSAM, AGCM, NDSM, ICM-W/3 CS, GWOTSM, ASR

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None Listed 

VI.  Facts, Circumstances, and Legal Basis for Separation
       a.  Facts and Circumstances:
       The evidence of record shows that on 9 May 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct-commission of a serious offense for absenting himself without leave for more than 30 days until apprehended (110131-110315); making a false official statement to a commissioned officer x 2 (100310, 100409); married a woman, having at the time of said marriage a lawful wife then living (100409); violating a lawful general order x 2 (110108, 110108); and failing to go to his appointed place of duty (110117), with a general, under honorable conditions discharge.         He was advised of his rights.
       
       On 10 May 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit 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.  charge.  
       
       On 17 May 2011, 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 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       14-12c, AR 635-200.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Misconduct (Serious Offense)," the separation code is "JKQ," 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 his discharge is invalid. 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 his discharge was invalid.  In fact, the applicant’s three Articles 15, and two negative counseling statements justify the separation action by the comand.
       
       The applicant desires to receive VA benefits.  Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.
       
       The applicant further contends his 1SG disliked and treated him unfairly.  Although the applicant alleges that he was a victim of racism during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge. 
       
       The applicant contends he was an accomplished Soldier with three tours in Iraq and awarded many awards and decorations.  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  overcome the reason for discharge and characterization of service granted. 
       
       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: 25 May 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: NA

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated (111202); and a DD Form 214, dated (110613).

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:




Colonel, U.S. Army
President, Army Discharge Review Board




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 AR20110023943
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