IN THE CASE OF:  	Mr 

      BOARD DATE:  	10 May 2013

      CASE NUMBER:  	AR20120018057
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the term of service under review, and considering the Discussion and Recommendation which follows, the Board determined 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 that his general, under honorable conditions discharge be upgraded to honorable.  

2.  The applicant states, in effect, the discharge was inequitable because it was his only incident of misconduct in 16 years of military service.  He also contends the discharge action was initiated nine months after the incident and by a new commander; it was never the intent of the Army to discharge him over the incident; and that he was a victim of double jeopardy.  He also contends he served honorably during the nine months following the incident by being placed in position of trust.  He believes; his discharge was improper because he was never issued any documentation or communication prior to or after the discharge, nor was any discharge certificate prepared, nor was there any statutory opportunity for appeal.  He is remorseful for the misconduct that happened 13 years ago, and has paid a terrible price for it.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			28 September 2012
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				21 January 1999				
d. Reason/Authority/SPD/RE Code:		Acts of Personal Misconduct, AR 135-175, 								paragraph 2-12n and o, DFS, NA
e. Unit of assignment:				416th Civil Affairs Bn, 1020 Sandy Street, 							Norristown, PA	
f. Current Entry Date/Term:			1 June 1991/USAR, NIF		
g. Current Term Net Active Service:		7 years, 7 months, 21 days	
h. Total Service:				15 years, 10 months, 12 days
i. Time Lost:					None
j. Previous Discharges:			ARNG-830310-870730/HD											USARCG-870801-870818/NA										ARNG-870819-900727/HD											USARCG-900728-910531/NA
k. Highest Grade Achieved:			O-3
l. Military Occupational Specialty:		13E, Cannon Field Artillery Officer
m. GT Score:					NA
n. Education:					College Graduate
o. Overseas Service:				NIF
p. Combat Service:				NIF
q. Decorations/Awards:			AAM, ASR
r. Administrative Separation Board: 		No
s. Performance Ratings:			Yes
t. Counseling Statements:			No
u. Prior Board Review:				No
SUMMARY OF SERVICE:		

The applicant was commissioned as a second lieutenant on 31 July 1987.  He was 21 years old at the time and a college graduate.  He attended the field artillery basic course and civil affairs officer advanced course.  His record reflects he achieved the rank of captain and earned an AAM.  He completed a total of 15 years, 10 months, and 12 days of service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The available evidence shows the applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the United States Army Reserve.  

2.  The record indicates that on 21 January 1999, Department of the Army, Headquarters, United States Army Special Operation Command, Fort Bragg, NC, Orders R021-4, discharged the applicant from the United States Army Reserve, effective 21 January 1999, with a general, under honorable conditions discharge.  The “additional instructions” paragraph of the said order makes reference to the applicant being relieved due to acts of personal misconduct.

3.  The applicant’s available service record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A General Officer Memorandum of Reprimand, for failing to report to the company commander's office, being drunk on duty with a blood alcohol content of .21%, failing to report for duty, and misleading his commander about a relative's death on 21 April 1998.

2.  A negative counseling statement, dated 22 April 1998, for being drunk on duty and lying about having a death in his family. 

3.  Three successful officer evaluation reports (OERs) covering the period of 19 August 1987 to 19 July 1989.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a brief in support of his application for upgrade of his discharge, copy of his discharge orders, extract pages from AR 135-175, copy of memorandum of reprimand packet, copies of certificates; DA Form 1059's; email communication; and photos, graduate school transcripts, and notes of encouragement from retired general officers. 






POST-SERVICE ACTIVITY: 

The applicant contends he is in his sixth year of federal service with the government; he is a professional actor and screenwriter.

REGULATORY AUTHORITY:

1.  Army Regulation 135-175 sets forth the basic authority for the separation of officers from the U.S. Army Reserve (USAR), except for officers serving on active duty or active duty training exceeding 90 days.  Chapters 2 and 3 provide the basis for involuntary separation of USAR officers.  Specific categories include substandard performance of duty, moral or professional dereliction, in the interest of national security, as a result of trial by court martial, 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 proper authority from unit training.  

2.  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.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  However, after examining the applicant’s available record of service, the documents and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  The service record is void of the specific facts and circumstances concerning the events which led to his discharge from the United States Army Reserve.

2.  The applicant’s record contains a properly constituted Order which was authenticated by the appropriate military authority.  This document identifies the characterization of the discharge and the presumption of government regularity prevails in the discharge process.

3.  Barring evidence to the contrary, it appears all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the type of discharge he received from the United States Army Reserve.






5.  The applicant contends his discharge is inequitable because of many reason to include only one incident of misconduct in 16 years of service, the Army never intended to discharge him, and that he was a victim of double jeopardy.  The applicant's contentions were carefully considered.  However, there is insufficient evidence available in the official record to make a determination upon these contentions.  Moreover, there is a presumption of regularity in the conduct of governmental affairs.  This presumption is applied in all Army discharge reviews 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 contentions.  There is no evidence in the record, nor has the applicant produced any evidence to support these contentions that he was unjustly discharged.

6.  The applicant also contends his discharge is improper because he was never issued any documentation or communication prior to or after the discharge.  Nor was there any discharge certificate prepared; and there wasn't any statutory opportunity for appeal.  However, the evidence of record shows the applicant was issued discharge orders, dated 21 January 1999, which indicates he was discharged on 21 January 1999 with a general, under honorable conditions discharge for acts of personal misconduct.  

7.  The creation of discharge certificates is not within the purview of the Army Discharge Review Board.  If the applicant believes there is an error or injustice in his discharge documents, he may make an application to the Army Board for Correction of Military Records, using DD Form 149, which can be obtained online or from a Veterans Service Organization.

8.  If the applicant desires a personal appearance, it is his responsibility to meet the burden of proof since the evidence is not available in the official record.  The applicant will need to provide the appropriate documents or other evidence (i.e., discharge packet) sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board's consideration.

9.  Therefore, based on the available evidence and the presumption of government regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief. 














SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review	  Date: 10 May 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 Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		NA
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)		AR20120018057



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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