IN THE CASE OF:	Mr. 

      BOARD DATE:  	12 April 2013

      CASE NUMBER:  	AR20120015908
___________________________________________________________________________

Board Determination and Directed Action

      After carefully examining the applicant's record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board determined the discharge to be both proper and equitable and voted to deny relief.  
      



      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests an upgrade of his discharge characterization from general, under honorable conditions to honorable.

2.  He states, in effect, that he was informed the charges against him were worst than they were while in court.  He was tricked.  His squad leader had started his Chapter 14-12c discharge packet on the basis that he was charged with felony assault while he was in jail without seeing the documents with charges.  The packet was built on rumors and incorrect information.  Upon being released from jail, he informed his squad leader that he was charged with misdemeanor assault offenses; however, his squad leader responded that it was too late, the packet was submitted, and that he can deal with it later.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		21 August 2012
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			10 May 2011
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, Chapter 14-12c, JKQ, RE-3
e. Unit of assignment:			A Co, 425th Bde Special Trps (BST) Bn (Airborne), 						Joint Base Elmendorf-Richardson, AK
f. Current Enlistment Date/Term:	31 January 2008, 3 years, 16 weeks
g. Current Enlistment Service:	3 years, 2 months, 10 days 
h. Total Service:			3 years, 2 months, 10 days
i. Lost time:				31 days, civilian confinement (101212-110111)
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	12B, Combat Engineer
m. GT Score:				111
n. Education:				High School Graduate
o. Overseas Service:			Alaska/Southwest Asia
p. Combat Service:			Afghanistan (090301-100224)
q. Decorations/Awards:		ARCOM, NDSM, ACM-CS, GWOTSM, ASR, OSR-2, 						NATO MDL, CAB, VUA
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None	
u. Prior Board Review:			No




SUMMARY OF SERVICE:		
	
The applicant's record shows he enlisted in the Regular Army on 31 January 2008 for a period of 3 years and 16 weeks.  He was a high school graduate and 21 years old at the time.  He was trained in and awarded military occupational specialty (MOS) 12B, Combat Engineer.  His record also shows that he served a combat tour, achieved the rank of SPC/E-4, and earned several awards including an ARCOM and a CAB.

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 10 March 2011, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct, for the commission of serious offenses; specifically for recklessly causing injury to three people.

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and informed the applicant of his rights.

3.  On 16 March 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted 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 a general, under honorable conditions discharge.  

4.  On 23 March 2011, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions under the provisions of AR 635-200, paragraph 14-12c, for the commission of serious offenses.

5.  The applicant's record shows he was in civil confinement for 31 days during the period      12 December 2010 through 11 January 2011.

6.  The applicant was separated on 10 May 2011, under Army Regulation 635-200, Chapter 14-12c (misconduct-serious offense), with a general, under honorable conditions discharge, an SPD code of JKQ and an RE code of 3.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An incident report, dated 10 December 2010, for assaulting two females.

2.  A civilian court misdemeanor hearing record with a file date of 12 December 2010 for three charges of 4th degree assault.  A court document with information on two counts of assault in the fourth degree and bail of $15,000, dated 12 December 2010, further amended to three counts of same charge, each with causing physical injury to three females, dated 25 January 2011. 

3.  A Mental Status Evaluation and Report of Medical History with unremarkable results, dated 1 February 2011.

4. The record does not contain any evidence of any counseling statements.
 
EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant submitted a copy of the separation packet consisting of thirty-two pages.

POST-SERVICE ACTIVITY: 

The applicant did not provide any.

REGULATORY AUTHORITY:

1.  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.  

2.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

3.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.









DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  However, after examining his military records, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The record confirms 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.  It brought discredit on the Army, and was prejudicial to good order and discipline.  By the incidents of misconduct, the applicant diminished the quality his service below that meriting a general or a fully honorable discharge.  The applicant’s service was marred by civilian court documents reflecting disposition of multiple violations assault and causing physical injuries.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.  

4.  The applicant contends that the discharge was unjust because his charges were misdemeanor assault charges.  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 this 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 civilian court documents reflect the assault charges that justifies the applicant’s misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and there is no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.

5.  Further, a review of the service record does not reveal any evidence of arbitrary or capricious actions by the applicant’s command.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   
    
6.  Therefore, the reason for discharge and the characterization of service being both proper and equitable, recommend the Board deny relief.  

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review    Date:  12 April 2013       Location: Washington, DC

Did the Applicant Testify?  NA

Counsel: None

Witnesses/Observers: NA


Board Vote:
Character  	Change:  0	No Change:  5
Reason	Change:  0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		No
Change Characterization to:	No Change
Change Reason to:		No Change
Change RE Code to:	N/A
Grade Restoration to:	N/A
Change Authority for Separation:	N/A
Other:	N/A

















 
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
ADRB Case Report and Directive (cont)		AR 20120015908

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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