Applicant Name:  

Application Receipt Date: 2010/06/03	Prior Review:  Yes   Prior Review Date: 11 July 2008, denied.

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that his discharge was inequitable because he was suffering from PTSD and broken hands and it was 7 days before his regular ETS.  The people in his chain of command were racist and abusive and when his father became ill, he was denied leave to go and visit him.  He requests an upgrade to honorable in order to get the benefits of his GI Bill.

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: 051001
Discharge Received: 			   Date: 060114   Chapter: 14-12b    AR: 635-200
Reason: Pattern of Misconduct	   RE:     SPD: JKA   Unit/Location: HHC, 1-36 IN Bn, Giessen, GE 

Time Lost: None

Article 15s (Charges/Dates/Punishment): The unit commander stated in his notification memorandum that the applicant received Field Grade Article 15s on 050701 and 040927, however, these documents are not part of the available record.

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  29
Current ENL Date: 030320    Current ENL Term: 3 Years  ?????
Current ENL Service: 	02 Yrs, 09Mos, 25Days ?????
Total Service:  		02 Yrs, 09Mos, 25ays ?????
Previous Discharges: 	None
Highest Grade: E-3		Performance Ratings Available: Yes    No 
MOS: 11B1L/Infantryman   GT: 93   EDU: MBA   Overseas: SWA   Combat: Iraq (031009-040710)
Decorations/Awards: ARCOM, PUC-3, JMUA, NDSM, GWOTEM, GWOTSM, CIB

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 3 August 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 pattern of misconduct—for receiving two field grade Articles 15 on 1 July 2005 and on 27 September 2004, for disobeying a lawful order from a commissioned officer, two specifications of wrongful previous overindulgence in liquor, breaking restriction; violating a lawful order, and being drunk and disorderly, with a general, under honorable conditions discharge.  He was advised of his rights.  

             On 15 August 2005, 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 20 December 2005, the separation authority waived further rehabilitative efforts 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 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.  
       
       Furthermore, the record does not support the issue that the applicant suffers from Post Traumatic Stress Disorder and no evidence to support it has been submitted by the applicant, that the discharge was the result of any medical condition.  
       
             The applicant contends that his discharge was inequitable and that the officers and NCOs in his chain of command were racist and abusive but provided no independent corroborating evidence demonstrating that either the command's action was erroneous.  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, to support the contention that he was unjustly discriminated.   In fact, the applicant’s two Articles 15 justify a pattern of misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any substantive documentation or further evidence in support of his request for an upgrade of his discharge.   
 
       Additionally, 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.  
       
       Finally, 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.
       
       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: Personal Appearance	          Date: 21 March 2011                  Location: Washington, DC

Did the Applicant Testify?  Yes     No    

Counsel: None

Witnesses/Observers: None

Exhibits Submitted: Copies of a request for a compassionate reassignment, LTC S' note, ten character reference letters, medical documents, report, Red Cross Messages, email to commanders (2), TJAG letter to commander, witdrawn EO complain, request for reassignment, VA findings for PTSD with 100 percent disability determination, Mount Sinai doctor's letter, MBA certificates, MBA Dean's character certificate and personal recommendation..

VIII.  Board Discussion, Determination, and Recommendation
After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony,  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						
	XI.  Certification Signature
Board Vote:  							          Approval Authority:	
Character - Change 0    No change 5
Reason -     Change 0    No change 5
(Board member names available upon request)
								         EDGAR J. YANGER			 
								         Colonel, U.S. Army
X.  Board Action Directed					         President, Army Discharge Review Board
Issue a new DD Form 214  					
Change Characterization to: 			         
Change Reason to: NA
Other: NA										
RE Code: 
Grade Restoration:   No   Yes   Grade: NA















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 AR20100015905
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