IN THE CASE OF:  	

      BOARD DATE:  	24 June 2013

      CASE NUMBER:  	AR20120016226
___________________________________________________________________________

Board Determination and Directed Action

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.




      
      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.  The applicant states, in effect, that he is trying to join the police force.  He feels that his discharge was inequitable because his chain of command used an Article 15 from a previous unit in his Chapter process when he had already been disciplined for that offense.  This offense was a result of an NCO screaming vulgar insults to him and his unit failed to properly investigate why he received the Article 15 and he feels he was accused of doing things he didn’t do.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		27 August 2012
b. Discharged Received:		General, Under Honorable Conditions
c. Date of Discharge:			20 January 2012
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14-12b 						JKA,RE-3        
e. Unit of assignment:			B Troop, 5th Sqdn, 73d Cavalry Rgt, Fort Bragg, NC
f. Current Enlistment Date/Term:	20 July 2009, 3 years and 21 weeks
g. Current Enlistment Service:	2 years, 6 months, 1 day
h. Total Service:			2 years, 6 months, 1 day
i. Previous Discharges:		None
j. Highest Grade Achieved:		E-3	
k. Military Occupational Specialty:	19D1P, Cavalry Scout
l. GT Score:				96
m. Education:				HS graduate
n. Overseas Service:			None
o. Combat Service:			None
p. Decorations/Awards:		NDSM, GWOTSM, ASR
q. Administrative Separation Board: 	No
r. Performance Ratings:		None
s. Counseling Statements:		Yes	
t. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 20 July 2009, for a period of 3 years and 21 weeks.  He was 18 years old at the time and was a high school graduate.  He was serving at Fort Bragg, NC, when his discharge was initiated.  He did not have any personally earned awards in his service record. 
SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence shows that on 14 December 2011, 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; specifically for the following offenses:

	a. receiving an Article 15 (101123) for failing to report and being disrespectful in
language to an NCO
	
      b. receiving a second Article 15 (111116), for failing to report, disobeying a lawful order from an NCO, and lying to an NCO
	
      c. possessing hypodermic needles discovered during a health and welfare inspection

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

3.  On 28 December 2011, the applicant was given the opportunity to consult with legal counsel, was advised of the impact of the discharge action and indicated he would submit a statement on his behalf (NIF).  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.  

4.  On 3 January 2012, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The applicant was appropriately discharged from the Army on 20 January 2012, under the provisions of AR 635-200, Chapter 14-12b, with a general, under honorable conditions characterization of service.

6.  The service record does not show any unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  The applicant received two Articles 15 for violations of the Uniform Code of Military Justice that are documented in his military record as follows:

	a.  Issued on 23 November 2010, failed to report three times (100918, 100920, 100921), disrespectful in language toward an NCO (101011); his punishment consisted of reduction to E-2, forfeiture of $378, extra duty and restriction for 14 days, and an oral reprimand (CG).

	b.  Issued on 16 November 2011, failed to report three times (111103, 111024, 110919), with intent to deceive provided four false statements (twice on 111103, 111129, 111024), disobeyed a lawful order from an NCO two times (111102); his punishment consisted of reduction to E-2, forfeiture of $383.00 (suspended), extra duty and restriction for 14 days, and an oral reprimand (CG).

	c.  On 12 December 2011,the suspended sentence of forfeiture of $383.00 was vacated for a new offense of possessing hypodermic needles (111129) for a violation of a lawful general regulation.

2.  The record contains numerous negative counseling statements for the period of 26 August 2011 through 29 November 2011, for violations of failure to report on several occasions, failure to show proof of insurance, possession of hypodermic needles, smoking in the work area, texting on his cell phone, and lying to an NCO.   

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant did not provided any supporting documents with the application.

POST-SERVICE ACTIVITY: 

None provided with the application.

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 CONCLUSIONS:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  However, after examining the applicant’s record of service, his military records, and the issues 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 numerous and repeated incidents of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant’s service was marred by two company grade Articles 15 for multiple violations of the UCMJ.

3.  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.  

4.  The applicant contends that he was inequitably discharged because his command used an Article 15 from a previous unit and did not properly investigate it and accused him of things he did not do.  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 and numerous negative counseling statements 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 documentation or further evidence in support of his request for an upgrade of his discharge.   

5.  Moreover, Army Regulation 635-200 stipulates in pertinent that commanders may use misconduct from other periods of service to establish a pattern that would warrant a Soldier’s discharge.  The record contains no evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

6.  The evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.  The record indicates the command made an assessment of the applicant's potential for becoming a fully satisfactory Soldier.  The evidence of record established the applicant was afforded a reasonable opportunity to overcome the noted deficiencies.  As the applicant did not subsequently conform to required standards of discipline and performance, the command appropriately determined the applicant did not demonstrate the potential for further military service.
7.  Finally, the applicant states he is trying to join the police force; however, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

8.  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: 24 June 2013    Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

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:		No Change
Grade Restoration to:		NA
Change Authority for Separation:	No Change
Other:					NA















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	UOTHC - Under Other Than                           			               Honorable Conditions
ADRB Case Report and Directive (cont)		AR 20120016226

6



ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1