IN THE CASE OF:  	Mr. 

      BOARD DATE:  	10 May 2013

      CASE NUMBER:  	AR20120019401
___________________________________________________________________________

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 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 his general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, that he was unjustly discharged.  He contends his discharge was of his own compliance to separate upon the pressure of his chain of command.  He also contends he was punished for all his misconduct with an Article 15 and believes all other infractions were irrelevant.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		15 October 2012	
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			18 October 2011
d. Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Chapter 14-12b, 						JKA, RE-3
e. Unit of assignment:			FSC, 3rd Sqn, 17th Cav, HAAF, GA
f. Current Enlistment Date/Term:	6 March 2010, for 6 years
g. Current Enlistment Service:	1 year, 7 months, 13 days
h. Total Service:			3 years, 8 months, 8 days
i. Time Lost:				None	
j. Previous Discharges:		RA-080211-100305/HD 
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	91L10, Construction Equipment Repairer
m. GT Score:				103
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (090611-100524)
q. Decorations/Awards:		AAM-2, AGCM, ICM-w/CS, NDSM-w/BS, 							GWOTSM, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 11 February 2008, for a period of 3 years and 22 weeks.  He was a high school graduate.  On 6 March 2010, he reenlisted for a period of     6 years; he was 25 years old at the time.  His record shows he served one combat tour, achieved the rank of SPC/E-4, and earned several awards including two AAMs and an AGCM.  He completed 3 years, 8 months, and 8 days of total active service.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 16 September 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. failure to report on numerous occasions between (101103 and 110711)
b. being disrespectful to a noncommissioned officer (NCO) (110322)
c. receiving a vacation of suspension for failing to report and disobeying a lawful order (110614)
d. receiving a field grade Article 15 (110512) for disobeying a lawful order

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

3.  On 27 September 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit 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 with a general, under honorable conditions discharge.  

4.  On 3 October 2011, 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 discharged from the Army on 18 October 2011, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for pattern of misconduct, with a Separation Program Designator code (SPD) of JKA and an RE code of 3. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 12 May 2011, for disobeying a lawful order from a commissioned officer (110415).  The punishment consisted of reduction to the grade of E-1, forfeiture of $733.00 pay (suspended), extra duty for 21 days, and restriction for 21 days (FG).

2.  Vacation of suspension, dated 10 June 2011, which vacated the punishment of forfeiture of $733.00 pay for one month for the Article 15 administrated on 12 May 2011, for failure to go at the time prescribed to his appointed place of duty (110528) and disobeying a lawful order from a NCO (110523).

3.  Memorandum, dated 15 April 2011 which suspended the applicant's installation driving privileges.

4.  Sixteen negative counseling statements dated between 4 November 2010 and 9 August 2011, for issues concerning showing up to work late, missing formations, disobeying orders, driving a motor vehicle without proper training, and notification for separation.
      
EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a copy of his discharge packet; enlisted record brief; and a copy of the DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

The applicant contends he is currently enrolled in college and is pursuing a bachelor degree in electronic engineering. 

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 the applicant’s record of service, his military records, the documents 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 pattern of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by his Article 15 for multiple violations of the Uniform Code of Military Justice, vacation of his suspended punishment, and several negative counseling statements.

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 he was unjustly discharged and his discharge was of his own compliance to separate upon the pressure of his chain of command.  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 discharged.  In fact, the applicant’s Article 15 to include his vacation of suspended punishment and numerous negative counseling statements justified a pattern of misconduct.  The applicant’s statement alone does not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge. 

5.  Furthermore, the applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of his discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge.  

6.  Additionally, the record does not contain any indication or 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.   The character of the applicant’s discharge is commensurate with his overall service record.  



7.  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:  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:			NA
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)		AR20120019401



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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