Applicant Name:  ?????

Application Receipt Date: 2012/07/13	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, that his platoon leader and platoon sergeant did not follow proper ammunition disposal procedures and he spoke out about it.  He served for almost 6 years without incident.  He requests an upgrade of his discharge to honorable and a change to the reason for his discharge.

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: 030702
Discharge Received: 			   Date: 030715   Chapter: 14-12c    AR: 635-200
Reason: Misconduct	   RE:     SPD: JKQ   Unit/Location: L Troop, 3d Squadron, 3d ACR, Fort Carson, CO 

Time Lost: None reflected on the DD Form 214.  However, the unit commander's memorandum to the approving authority mentions an AWOL period of 14 days (030528-030610).

Article 15s (Charges/Dates/Punishment): 030520, conspiracy by wrongfully disposing an M829 Sabot round (between January 2002 and May 2002), dereliction of duty (between January 2002 and March 2003), wrongfully disposed of an M829 Sabot round by burying it (between January 2002 and May 2002), reduction to E-4, forfeiture of $874.00 for two months, 45 days of extra duty and 45 days of suspended restriction (FG)

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

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 010829    Current ENL Term: 3 Years  ?????
Current ENL Service: 	01 Yrs, 10 Mos, 16 Days ?????
Total Service:  		06 Yrs, 05 Mos, 10 Days ?????
Previous Discharges: 	RA 971231-010828/HD
                                               IADT 970206-970523/UNC
                                               ARNG (dates not in file)

Highest Grade: E-5		Performance Ratings Available: Yes    No 
MOS: 19K10/M1 Armor Crewman   GT: 97   EDU: HS Grad   Overseas: None   Combat: None
Decorations/Awards: AGCM, NDSM, 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 2 July 2003, 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 conspiring to wrongfully dispose of an M829 Sabot round explosive by burying it, with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 2 July 2003, the applicant waived legal counsel, unconditionally waived his right to an administrative separation board, was advised of the impact of the discharge action and did not submit a statement on his 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 2 July 2003, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.
       
       The record contains a CID Report dated 9 April 2003.

       b.  Legal Basis for Separation:  
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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 being absent 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, the documents, and the issues 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 his serious misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant’s service was marred by a field grade Article 15 for multiple violations of the Uniform Code of Military Justice.
       
       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 that his platoon leader and platoon sergeant did not follow proper ammunition disposal procedures and when he spoke about it he was discharged from the Army.  However, the record contains a CID report that contradicts the applicant’s statements.  He was involved in a conspiracy that involved the improper disposal of a 120 mm round that had been inadvertently left in a M1A2 tank for several months.  There is 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 this 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 discharged.   In fact, the applicant’s Articles 15 and negative counseling statements justified his discharge from the Army.  The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence to corroborate his claim that he was not part of the conspiracy.  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.  
       
       The applicant also contends that the narrative reason for his discharge should be changed.  However, the applicant was separated under the provisions of Chapter 14, paragraph 14-12c, AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations in effect at the time, for a discharge under this paragraph was "Misconduct ," and the separation code was "JKQ."  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.  
       
       Finally, the analyst acknowledges the applicant's in service accomplishments as stated in his application.  However, the analyst did not find this sufficiently mitigating to warrant an upgrade of the discharge under review.  
       
       Furthermore, the applicant’s request for the award of the Armed Forces Expeditionary Medal does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization. 
       
       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: 14 December 2012         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: Online application, AFEM award and memorandum, PERSCOM message, record of manifest, extract of AR600-8-22, promotion certificate, APFT award, and other awards.




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						
Board Vote:
Character - Change 1    No change 4
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:




ARCHIE L. DAVIS III
Colonel, U.S. Army
President, Army Discharge Review Board




JOSEPH M. BYERS
Lieutenant Colonel, U. S. Army
Secretary Recorder










Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTH - Under Other Than Honorable 
												Conditions 

ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20120013264
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