IN THE CASE OF:  	Mr. 

      BOARD DATE:  	6 May 2013

      CASE NUMBER:  	AR20120020739
___________________________________________________________________________

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 an upgrade of his discharge characterization from general, under honorable conditions to fully honorable.

2.  The applicant states, in effect, that he feels he did his best to serve his county.  Even though he was mistreated by his superiors and threatened with violence and even death, he served well including his combat tour in Iraq.  He was manipulated into signing his way out of the military as an E-2 even though he was an E-4 most of his 3-years in active duty. There was racism and hazing with gang activities in his unit.  He states that he came back from Iraq suffering with PTSD.  He feels he was misdiagnosed with an adjustment disorder, instead of the proper diagnosis of PTSD found by the Veterans Administration.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		5 November 2012
b. Discharge Received:		General, under honorable conditions 
c. Date of Discharge:			9 October 2009
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14-12b, 						JKA, RE-3
e. Unit of assignment:			62d Quartermaster Co, Fort Hood, TX
f. Current Enlistment Date/Term:	7 June 2007, 3 years
g. Current Enlistment Service:	2 years, 4 months, 3 days
h. Total Service:			4 years, 9 months, 3 days
i. Time Lost:				None
j. Previous Discharges:		USAR (050107-070606), NIF
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	92A10, Automated Logistics Specialist
m. GT Score:				NIF
n. Education:				GED
o. Overseas Service:			SWA
p. Combat Service:			Iraq (071224-090315)
q. Decorations/Awards:		ARCOM, NDSM, ICM-CS, 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's record shows that on 7 January 2005, he enlisted in the US Army Reserve.  On 7 June 2007, he enlisted in the Regular Army for a period of 3 years.  He was an E-4/SPC at the time of entry, was 20 years old, and had a high school equivalency (GED).   The record shows he served a combat tour in Iraq and earned several awards that included an ARCOM.  At the time his discharge proceeding were initiated he was serving at Fort Hood, TX.  He served for a total of 4 years, 9 months and 3 days.

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 7 October 2009, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct; specifically for:

      a. received a company grade Article 15 (080303) for being disrespectful to an NCO
b. received a field grade Article (090709) for failing to report, disrespecting an NCO on two occasions, and disobeying a lawful order from an NCO 
c. numerous acts of belligerent behavior including the destruction of government property and assaulting the first sergeant.

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

3.  On 7 October 2009, 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 of a general, under honorable conditions discharge.  

4.  On 8 October 2009, 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 separated on 9 October 2009, under Army Regulation 635-200, Chapter 14-12b for a pattern of misconduct, with a general, under honorable conditions discharge, an SPD code of JKA and an RE code of 3.

6.  The applicant’s record does not show any time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  The applicant's disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, as follows:

      a. On 9 July 2009, for failing to report (090521), disrespectful to an NCO on 3 occasions (090526, 090605, 090608), and disobeying a lawful order from an NCO two times (090608).  His punishment consisted of reduction to E-2, forfeiture of $784.00, and 60 days of restriction (FG)
      b.  On 8 March 2008, for being disrespectful in language to an NCO while in Iraq (080305), leaving his place of duty without proper authorization (080223), failing to report to his designated place of duty (080125).  His punishment consisted of reduction to the grade of E-3, forfeiture of $360.00 and 14 days of extra duty (CG)

2.  There are 10 negative counseling statements dated between 26 May 2009 and 5 October 2009, for failing to report, disobeying lawful orders, disrespecting NCO’s, insubordination, and initiation of discharge proceedings.

3.  A Military Police Report dated 24 September 2009 that indicates the applicant was the subject of an investigation for assault.

EVIDENCE SUBMITTED BY THE APPLICANT 

None was provided with the application.

POST-SERVICE ACTIVITY: 

None was 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 RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  However, after examining his military records and the issues submitted with the application, there are insufficient 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 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 Articles 15 for multiple violations of the Uniform Code of Military Justice and numerous negative counseling statements.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.  

4.  The applicant contends that he was mistreated by his superiors, was threatened, suffered racism, hazing and was exposed to gang activities.  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 serious 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, prior to initiating the discharge proceedings, the command ensured the applicant was appropriately counseled about the deficiencies which could lead to his separation.  The evidence of record established the applicant was afforded a reasonable opportunity to overcome these 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.

6.  Further, the applicant’s 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.  The applicant also contends he was suffering from PTSD when he returned from Iraq.  However, the service record contains no evidence of Post-Traumatic Stress Disorder diagnosis and the applicant did not submit any evidence to support the contention that the discharge was the result of any medical condition.  
8.  Finally, the applicant contends that an upgrade of his discharge would allow medical and educational benefits through the use of the GI Bill.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

9.  Records show the proper discharge and separation authority procedures were followed in this case.

10.  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: 6 May 2013    	Location: Washington, DC

Did the Applicant Testify?  No

Counsel: None

Witnesses/Observers: No

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted no additional documents:

2.  The applicant presented no additional contentions:

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:		N/A
Grade Restoration to:		N/A
Change Authority for Separation:	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	UOTH - Under Other Than                           			               Honorable Conditions
ADRB Case Report and Directive (cont)		AR 20120020739

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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