IN THE CASE OF:  	Mr.

      BOARD DATE:  	26 April 2013

      CASE NUMBER:  	AR20120020406
___________________________________________________________________________

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 under other than honorable conditions discharge be upgraded to general, under honorable conditions.

2.  The applicant states, in effect, that his characterization of service is inequitable because it was based on one isolated incident that was not proven to be true at the time of his discharge and because of his length of service.  At the time of discharge he was confined by civilian authority; however he had not been convicted of the offense he was being accused of.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		26 October 2012
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			12 May 2006
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, Chapter 						14-12c, JKQ, RE-3
e. Unit of assignment:			Army Element, US Central Command, Mac Dill, AFB
f. Enlistment Date/Term:		4 October 2001, 4 years
g. Current Enlistment Service:	3 years, 7 months, 10 days
h. Total Service:			3 years, 7 months, 10 days
i. Time Lost:				364 days, Confinement by Civil Authorities 							(050514-060512)
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	98C10, Signals Intelligence Analyst  
m. GT Score:				117
n. Education:				HS Graduate
o. Overseas Service:			Korea
p. Combat Service:			None
q. Decorations/Awards:		ARCOM-2, AAM, NDSM, GWOTSM, KDSM, ASR
r. Administrative Separation Board: 	Yes
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No






SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 4 October 2001, for a period of 4 years and he was a high school graduate at the time of enlistment.  He was 17 years old at the time.  He served for 3 years, 7 months, and 10 days of a 4 year enlistment and was discharged for misconduct, specifically for committing two armed robberies.  His service record reflects he served two tours in Korea, achieved the rank of SGT/E-5, and earned an ARCOM, AAM, and an AGCM.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 5 January 2006, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct-commission of a serious offense, specifically for committing two armed robberies (050513) in St. Petersburg, Florida.

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.  

3.  On 18 January 2006, the applicant consulted with legal counsel and requested consideration of his case by an administrative separation board.  The applicant 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 an under other than honorable conditions discharge.  

4.  On 16 March 2006, the applicant was notified to appear before an administrative separation board and advised of his rights.  

5.  On 28 March 2006, the administrative separation board convened and the applicant's counsel represented him because he was incarcerated.  The board recommended the applicant’s discharge with characterization of service of under other than honorable conditions.

6.  On 14 April 2006, the applicant submitted a rebuttal appealing the recommendation of the Administrative Separation Board.

7.  On 28 April 2006, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

8.  The applicant was discharged from the Army on 12 May 2006, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

9.  The applicant’s record of service indicates he accrued 364 days of time lost for being confined by civil authorities from 14 May 2005 until his day of discharge.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

A St. Petersburg Police Department report that indicates the applicant was the subject of an investigation for committing two armed robberies.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant submitted a Summary of Argument, copy of rebuttal for Recommendation by Administrative Separation Board, promotion order to sergeant, dated 6 August 2004, copy of certificate for award of the ARCOM, letters of support submitted to Administrative Separation Board, and discharge order, dated 9 May 2006 in addition to his application

POST-SERVICE ACTIVITY: 

None were provided by the applicant.

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 serious misconduct, the applicant diminished the quality his service below that meriting a general, under honorable conditions discharge.  

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 his characterization of service is inequitable because it was based on one isolated incident that was not proven to be true at the time of his discharge.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  

5.  Furthermore, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation.  The evidence of records shows the Administrative Separation Board found by a preponderance of evidence that the applicant committed two armed robberies, and recommended that he be separated from the Army under other than honorable conditions.

6.  The applicant contends that he had good service prior to his incident of misconduct.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the severity of the incident of misconduct.

7.  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.  

8.  The records show the proper discharge procedures were followed in this case.  

9.  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: Record Review   Date:  26 April 2013   Location: Washington, DC

Did the Applicant Testify?  N/A 

Counsel: None

Witnesses/Observers: N/A 
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:	N/A
Change RE Code to:		N/A
Grade Restoration to:		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	UOTHC - Under Other Than                           


ADRB Case Report and Directive (cont)		AR20120020406



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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