IN THE CASE OF:  	Mr. 

      BOARD DATE:  	 22 April 2013

      CASE NUMBER:  	AR20120019435
___________________________________________________________________________

Board Determination and Directed Action

1.  After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation that follows, the Board determined the discharge to be proper and equitable and voted to deny the relief requested.

2.  The Board found that the applicant's post service accomplishments in the US Army Reserve did not mitigate the discrediting entries in the applicant’s service record.  His service was marred by three Articles 15 for serious violations of the Uniform Code of Military Justice.





      
      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 from general under honorable conditions to honorable and a change to the reason for the discharge.

2.  The applicant states, in effect, that in January of 2003 he reenlisted in the US Army Reserve and has an impeccable record.  He has served in combat, has achieved the rank of Sergeant First Class/E-7, and has been ordered to active duty on two different occasions and received honorable discharges from those tours of active service.  Between 1997 and 1998 he was facing serious personal and emotional struggles while dealing with his father’s terminal cancer.  These feelings of sadness manifested into acts of misconduct such as fighting, insubordination and failures to report.  He received three Articles 15 and was ultimately discharged from the Army.  He was given a second chance, joined the USAR in 2003 where he continues to serve.  Since then he has taken every opportunity to educate Soldiers about the consequences of their actions.  This DD Form 214 has remained in his record despite his post service accomplishments and has been the cause of his being turned down for employment.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		12 October 2012
b. Discharged received:		General, under honorable conditions
c. Date of Discharge:			3 September 1998
d. Reason/Authority/RE:		Misconduct, Chapter 14-12c, JKQ, RE-3
e. Unit of assignment:			A Co, 1st Battalion, 3d IN Regiment, Fort Monroe, VA
f. Current Enlistment Date/Term:	16 June 1995, 4 years and 17 weeks
g. Current Enlistment Service: 	3 years, 2 months, 18 days
h. Total Service:			3 years, 2 months, 18 days
i. Previous Discharges:		None
j. Highest Grade Achieved:		E-4
k. Military Occupational Specialty:	11B1P, Infantry
l. GT Score:				105
m. Education:				HS Graduate
n. Overseas Service:			None
o. Combat Service:			None
p. Decorations/Awards:		NDSM, 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 16 June 1995, for a period of 4 years and 17 weeks.  He was 18 years old at the time of entry and a high school graduate.  He served for a little over 3 years and was discharged for misconduct.  On 16 January 2003, the applicant reenlisted in the USAR and continues to serve.  His service record reflects that he was ordered to serve on active duty two times (110905-120903 and 090519-110730) and each time he earned a characterization of service of honorable.  His record also shows that he had combat service in Iraq (dates NIF), achieved the rank of SFC/E-7, and earned the following awards:  ARCOM, ARCAM, AGCM, NDSM-2, ICM-CS, AFRM-M, ASR, OSR.

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 8 July 1998, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200.  Specifically for the following offenses:  

a. being disrespectful to an NCO (980501)
b. damaging military property (980124)
c. damaging non-military property (980124)

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge.

3.  On 24 August 1998, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted a statement on his own 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.  

4.  On 28 August 1998, 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’s record does not show any record of unauthorized absences.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1. Several counseling statements that indicate the applicant had an anger problem, failed to report on time to his place of duty on several occasions, was disrespectful to a non-commissioned officer, missed movement, and on one occasion was counseled for striking a corporal with his hand.

2.  Three Articles 15 for violations of the UCMJ as follows:

a.  On 25 June 1998, he received an Article 15 for failure to report (980605), and his punishment consisted of reduction to the grade of E-2, forfeiture of $242 (suspended), and 10 days of extra duty (CG)

b.  On 13 February 1998, he received an Article 15 for damaging military property by throwing the company guide on (980124), the continuation page of the Article 15 is not available.  His punishment consisted of reduction to E-3 and was initially suspended and later vacated, forfeiture of $282, extra duty for 14 days and restriction for 7 days (CG)

c.  On 7 April 1997, he received another Article 15 for assault on a NCO (970131); his punishment consisted of reduction to the grade of E-2 (suspended), forfeiture of $235 (suspended), 14 days of extra duty and restriction (CG)

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided an award of the Order of the Combat Spur, two DD Forms 214 with honorable characterizations of service (120903, 110730), a DD Form 293, a self-authored statement, and a copy of his DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

On 16 January 2003, the applicant reenlisted in the USAR and continues to serve.  He has served on active duty as follows:  OAD 110905-120903/HD, OAD 090519-110730/HD.
Combat service in Iraq (dates NIF).  He has achieved the rank of SFC/E-7 and received the following awards:  ARCOM, ARCAM, AGCM, NDSM-2, ICM-CS, AFRM-M, ASR, and OSR.

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.  After a careful review of the applicant’s military records during the period of enlistment under review, the issues and documents submitted with the application, the analyst determined that the discharge is now inequitable based on his outstanding post-service conduct that provides the basis for a more thorough understanding of his performance during the period of service under review.

2.  This recommendation was made after full consideration of his faithful and honorable service, as well as his record of misconduct.  The evidence in this case supports a conclusion that the applicant’s discharge is now inequitable.  While the applicant's misconduct is not condoned, the overall length and quality of the applicant's service, his post service accomplishments while serving in the USAR, where he continues to serve, has attained the grade of E-7/SFC, and his service in combat, mitigated the discrediting entries in the service record.  He has served for almost fourteen and a half years, has earned two honorable discharges for two tours on active duty, one of which was a combat tour.  His record contains several NCOERs and the last one reflects a rater’s assessment of among the best with a senior rater’s assessment of his performance and potential as successful/2 and superior/1 respectively.

3.  The applicant states that at the time of the period under review, he was facing serious personal and emotional struggles while dealing with his father’s terminal cancer.  

4.  In view of the foregoing, the analyst recommends to the Board that relief be granted in the form of an upgrade of the characterization of service to honorable and a change to the narrative reason for separation to Secretarial Authority.  

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Personal Appearance	  Date: 22 April 2013    Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel:  No

Witnesses/Observers: None 

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE

1.  The applicant did not submit any additional documents.

2.  The applicant presented no additional issues.

In addition to the analyst’s recommendation, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing.

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:	NA
Change Reason to:			NA
Change RE Code to:		NA
Grade Restoration to:		NA
Change Authority for Separation:	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	UOTH - Under Other Than                           			               Honorable
ADRB Case Report and Directive (cont)		AR 20120019435		

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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