Applicant Name:  ?????

Application Receipt Date: 2012/11/26	Prior Review:     Prior Review Date: NA     

I.  Applicant Request:  Upgrade     Reason Change     RE Code Change    

Issues: The applicant states, in effect, he received an AGCM after 3 years of Army active service.  Somehow he went from good to bad in a short period of time.  He served in Iraq in 2006 to
2007, and reenlisted in April of 2007 during his tour in Iraq.  He experienced unprofessional behavior from his NCOIC.  She acted like she wanted him out of the military.  He felt like he was being pushed around because he didn't hang out with them after duty hours.  He only got into minor trouble compared to other Soldiers.  He believes they didn’t like him because he had a combat experience and they didn’t.
Also, he believes his NCOIC liked him, but he wasn’t interested in her at all.

He did go to the IG office once or twice to explain his situation and he was directed to talk to his company commander.  After he spoke with them, they didn’t believe him because two NCOs had influenced them that he was a bad Soldier based on the counseling statements.  The majority of the reasons that supported his chapter was for disrespect to a NCO.  The reason he had disrespected his NCOs was because they lied about having his TA-50.  He also talked to a Chaplin about everything but that also didn’t help.  No one believed him and he started not to care anymore.

II.  Were Proper Discharge and Separation Authority procedures followed?	     
Tender Offer:   NA

See Attachments:  Legal     Medical     Minority Opinion     Exhibits 

III.  Discharge Under Review
Unit CDR Recommended Discharge: 	   Date: 090521
Discharge Received: 			   Date: 090618   Chapter: 14-12b       AR: 635-200
Reason: Pattern of Misconduct	   RE:     SPD: JKA   Unit/Location: 135th Forward Support Company, 3d Battalion, 27th Field Artillery Regiment (HrMARS),Fort Bragg, NC 

Time Lost: None

Article 15s (Charges/Dates/Punishment): 081010, willfully disobeyed a lawful order from an NCO, a SSG,(081103); was derelict in the performance of his duties (081017), extra duty for 14 days. (Summarized)

090311, was disrespectful in language towards a NCO, a SGT (090126); failed to go to his appointed place of duty at the prescribed time (090119), reduction to the grade E-1, forfeiture of $699.00 pay per month for 2 months, suspended, and extra duty for 45 days. (FG)

Courts-Martial (Charges/Dates/Punishment): None

Counseling Records Available: Yes    No 

IV.  Soldier’s Overall Record
Age at current enlistment:  21
Current ENL Date: 070415    Current ENL Term: 05 Years  ?????
Current ENL Service: 	02 Yrs, 02 Mos, 03 Days ?????
Total Service:  		03 Yrs, 08 Mos, 08 Days ?????
Previous Discharges: 	RA-051011-070414/HD
Highest Grade: E-4		Performance Ratings Available: Yes    No 
MOS: 88M10 Motor Transport Operator   GT: 95   EDU: HS Grad   Overseas: SWA   Combat: Iraq 9060816-071015)
Decorations/Awards: NDSM, ICM-w/CS, GWOTSM, ASR, OSR, CAB 

V.  Post-Discharge Activity
City, State:  ?????
Post Service Accomplishments: None listed by the applicant.  

VI.  Facts, Circumstances, and Legal Basis for Separation

       a.  Facts and Circumstances:
       The evidence of record shows that on 19 May 2009, 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 for disobeying a lawful order (081103), was derelict in his duties (081017), was  disrespectful to an NCO (090126), and was FTR (090119), with a general, under honorable conditions discharge.  He was advised of his rights.  
       
       On 19 May 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in 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.  
       
       On 26 May 2009, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

       b.  Legal Basis for Separation:  
       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.   

       c.  Response to Issues, Recommendation and Rationale:  
       After a careful review of all the applicant’s military records, and the issue and documents submitted with the application, the analyst found no mitigating factors which would merit an upgrade of the applicant's discharge.  
       
       The analyst determined 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.  By the misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  
       
       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.  
       
       The applicant contends he received an AGCM after 3 years of Army active service, served in Iraq and didn't have problems until he went to his new duty station.  The analyst acknowledges the applicant’s in-service accomplishments and considered the quality of his service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct or by the multiple negative counseling statements, and the documented actions under Article 15 of the Uniformed Code of Military Justice.
       
       Furthermore, he expresses that he experienced unprofessional behavior from his NCOs and his chain of command, the IG and the chaplain failed to stop the harassment.  The applicant's contentions were noted; 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 issues.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discriminated and harassed.  In fact, the applicant’s two Articles 15 and numerous negative counseling statements justify a pattern of 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.   
       
       Lastly, the analyst found no evidence of arbitrary or capricious actions by the command.  The analyst was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  
       
       Therefore, the analyst determined the reason for discharge and the characterization of service were both proper and equitable and recommends to the Board to deny relief. 

VII.  Summary of Army Discharge Review Board Hearing

Type of Hearing: 	Date: 1 April 2013         Location: Washington, DC

Did the Applicant Testify?  Yes     No  

Counsel: None

Witnesses/Observers: NA 

Exhibits Submitted: DD Form 293; DD Form 214; a self-authored statement; an AGCM; a Base System Civilian Evaluation Report; a Certificate of Achievement; an Enlisted Record Brief 

VIII.  Board Discussion, Determination, and Recommendation
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 to be proper and equitable and voted to deny relief.


        
IX.  Board Decision						
Board Vote:
Character - Change 0    No change 5
Reason -     Change 0    No change 5
(Board member names available upon request)

X.  Board Action Directed
Issue a new DD Form 214  
Change Characterization to: 
Change Reason to: N/A
Other: N/A
RE Code: 
Grade Restoration:   No   Yes   Grade: None

XI.  Certification Signature
Approval Authority:




ARCHIE L. DAVIS III
Colonel, U.S. Army
President, Army Discharge Review Board




JOSEPH M. BYERS
Lieutenant Colonel, U. S. Army
Secretary Recorder
?????



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 

ARMY DISCHARGE REVIEW BOARD - CASE REPORT AND DIRECTIVE

Case Number AR20120022145
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