IN THE CASE OF:  	

      BOARD DATE:  	17 April 2013

      CASE NUMBER:  	AR20120022403
___________________________________________________________________________

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

2.  The applicant states, in effect, that since his discharge has not been in any trouble and would like to attend school.  He also believes that a diagnostic test should not be counted as a third PT test.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		4 December 2012		
b. Discharge Received:		General, Under Honorable Conditions		
c. Date of Discharge:			9 November 2011 	
d. Reason/Authority/SPD/RE Code:	Physical Standards, AR 635-200, paragraph
   13-2e, JFT, 3		
e. Unit of assignment:			535 EN SPT CO, 54th EN BN, 18th BN BDE
	 				Bamberg, GE
f. Current Enlistment Date/Term:  	9 November 2009, 4 years	
g. Current Enlistment Service:	2 years, 0 months, 1 day	
h. Total Service:			2 years, 0 months, 1 day
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	12N10 Horizontal Construction
m. GT Score:				101
n. Education:				HS Graduate
o. Overseas Service:			SWA, Germany
p. Combat Service:			Afghanistan (101201 – 111001)
q. Decorations/Awards:		NDSM, ACM-2, GWOTSM, ASR, NATO MDL
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 9 November 2009 for a period of 4 years.  He was 19 years old at the time of entry and a high school graduate.  He served in Germany, and Afghanistan.  He earned 2 ACMs and completed 2 years, 1 day of active duty service.




SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 17 August 2011, the commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 13, Separation for Unsatisfactory Performance. Specifically for:

	a.  failing his APFT on (100630), (101020), and (101118);
	b.  assaulting another Soldier with his M4 rifle;
	c.  disobeying a lawful order and making unauthorized charges to the SP report for RCP 
                45 on (110320).

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

3.  On 23 August 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted 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 with a general under honorable conditions discharge.  

4.  On 7 October 2011, the separation authority directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 9 November 2011, under Army Regulation 635-200, Chapter 13-2e, with a general, under honorable conditions discharge, an SPD code of JFT, and a RE code of 3.               

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 12 February 2011, for unlawfully striking LP in the stomach with his M4 rifle.  The punishment consisted of reduction to the grade of E-1, suspended, to be automatically remitted if not vacated before (110513), forfeiture of $733 per month for 2 months, suspended, to be automatically remitted if not vacated before (110513), extra duty for 30 days, (FG). 

2.  Six negative counseling statements dated between 20 October 2010 and 8 May 2011, for failing the APFT, unsatisfactory progress during the monthly weigh-in, failing to follow instructions concerning the RCP 45 report, and for being considered for separation from the Army and lifting a record flag.


EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 and a DD Form 214. 

POST-SERVICE ACTIVITY: 

The applicant states he has not been any trouble since being discharged.

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this Chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  

2.  Army policy states that a general, under honorable conditions discharge is normally considered appropriate; however, an honorable discharge may be granted in meritorious cases.

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 misconduct, the applicant diminished the quality his service below that meriting a general or a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for violating the Uniform Code of Military Justice.

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 would like to go to school; 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.

5.  The applicant contends he has not been in trouble since his discharge.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears this accomplishment did not overcome the reason for discharge and characterization of service granted.  

6.  The applicant contends that a diagnostic test should not be counted as a third PT test.  However, 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.  The records show the proper discharge and separation authority procedures were followed in this case.

8.  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:  17 April 2013      Location: Washington, DC

Did the Applicant Testify?  No		 

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:	No Change
Change Authority for Separation: No Change
Change RE Code to: No Change	
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)		AR20120022403



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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