Applicant Name:  ?????

Application Receipt Date: 2011/09/12	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that he feels his discharge was unjust, and requests for an upgrade to Honorable and the narrative reason be deleted or reflect that he was undergoing a hardship.  He states he was previously discharged with honorable conditions for the periods 990810 to 020809 and 030115 to 030615.  During that period, he was a graduate of the Army Ranger and the Army Airborne Schools. The period that he seeks an upgrade for, he was awarded two Army Achievement Medals; however, he received a disciplinary action near the end of his tour.  Had he known that he could decline punishment under Article 15 and opted for a Court-Martial, he would have taken that option.  When considering his more than six years of honorable service, there are only two reasons given for his general discharge.  Both were given during a period following a knee injury and diagnosis of a sleep disorder while suffering from PTSD, which was related to his previous service in Kosovo.  If not for his knee injury, he was told by an instructor at the Special Forces and Selection that he would have been selected.  He concludes that if you look at his overall service, a General under Honorable Conditions discharge deprives him of education benefits that he feels he has earned and deserves. 

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: 060330
Discharge Received: 			   Date: 060421   Chapter: 14-12b    AR: 635-200
Reason: Pattern of Misconduct	   RE:     SPD: JKA   Unit/Location: Maintenance Troop, Regimental Support Squadron, 11th ACR, Fort Irwin, CA 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 051009, failed to go to his appointed place of duty as the prescribed time x 2 on 050831 and 050907, and disobeyed an NCO on 050826 / disrespectful in language toward an NCO on 050826 -reduced to E-1; forfeiture of $300 x 2 months; 45-day extra duty/restriction, (FG)

050601, failed to go to his appointed place of duty as the prescribed time x 2 on 041031 and 050217, and disobeyed an NCO between 0500401-050403 - reduced to E-3; forfeiture of $400 (suspended); 14-day extra duty/restriction, (CG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  22
Current ENL Date: 030702    Current ENL Term: 3 Years  ?????
Current ENL Service: 	02 Yrs, 09 Mos, 20 Days ?????
Total Service:  		06 Yrs, 04 Mos, 06 Days ?????
Previous Discharges: 	     RA 990810-020809 / HD
			ARNG 020701-030115 / HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 63H (Tracked Vehicle Mech)   GT: 103   EDU: HS Grad   Overseas: Italy   Combat: NIF
Decorations/Awards: AAM-3; AGCM; NDSM; GWOTSM; ASR; OSR; NATO MDL; 


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

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 13 March 2006, 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 pattern of misconduct: he received a company grade Article 15 on 050601 for missing formation twice and for disrespecting an NCO; he received a field grade Article 15 on 051009 for missing formation twice and for disrespecting an NCO twice; and he received counseling for missing formation on 060219, with a general, under honorable conditions discharge.  He was advised of his rights, to include that he was entitled to a hearing before an administrative separation board if he had over six or more years of active and reserve military service at the time of separation and if entitled, he may submit a conditional waiver of that right, and the applicant elected to consult with a legal counsel.  
       
       However, on 15 March 2006, the applicant, having been afforded the opportunity to consult with a counsel explicitly stated he did not wish to seek counsel and signed a statement waiving consultation with a legal counsel--he indicated he understood the implication of the discharge action and requested to complete the discharge process, and did not submit a statement in his own behalf.  The applicant further specified that there were no other promise, representation, or commitment made to him in connection with his separation.  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 3 April 2006, 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 the entire 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 contends that he was unjustly 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.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous--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 as shown by the repeated incidents of misconduct or by the negative counseling statements, and the documented actions under Article 15 of the Uniformed Code of Military Justice.  Accordingly, 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.  The applicant’s statement alone does not overcome the government’s presumption of regularity in this case.  
       
       The applicant also contends he is entitled to an upgrade of his discharge because of mitigating circumstances which contributed to his misconduct.  Specifically, he claims experiencing hardship issues and suffering from PTSD resulted in his discharge.  While the applicant may believe his stress from hardship was the underlying cause of his misconduct, the record of evidence does not demonstrate that he sought relief or assistance through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  Further, 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 analyst also noted the applicant's issues about the benefits of the GI Bill.  However, 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.
       
       In addition, 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. 
       
       Furthermore, 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. 
       
       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: 21 March 2012         Location: Washington, D.C.

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293, dated 8 September 2011; DD Forms 214, dated 060421, 020809, and NGB Form 22, dated 030115 







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: NA
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 AR20110018758
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