IN THE CASE OF:  Mr. 	

      BOARD DATE:       24 April 2013	

      CASE NUMBER:    AR20130000106
___________________________________________________________________________

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

2.  The applicant states, in effect and in pertinent part, that he enlisted at age 18 in the Army National Guard then transferred to active duty.  He deployed to Iraq in 2009 through 2010, during which he almost took a life of a child, and the incident has always severely bothered him, since he had a child of his own.  He went through a divorce during his deployment.  Those experiences and not being able to see his son contributed to his alcohol issues.  He enrolled in ASAP and passed after three months; however, fell back into the old ways.  He received a DUI for refusing a breathalyzer.  In another incident, he was incarcerated for helping a fellow Soldier who was intoxicated and about to get beat up by another person by hitting the man over the head with a bottle.  He was incarcerated in a civilian jail for two months for protecting a battle buddy.  He loved the Army and had another deployment he was looking forward to, but was discharged.  He would return to the military if he had the opportunity and would gladly go on another deployment.  He has tried to overcome everything but his discharge set him so far back in a decision of going to college and pursuing a career to put him back on his feet.  He wants his life back that was taken away with extreme prejudice.  (Note that the applicant has an extensive detailed self-authored statement.)

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	26 December 2012
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	18 August 2011
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense) / AR 635-200, 
			Paragraph 14-12c / JKQ / RE-3
	e.	Unit of assignment:	C Company, 2nd Battalion, 16th Infantry Regiment 
			4th Infantry Brigade Combat Team, Fort Riley, KS
	f.	Current Enlistment Date/Term:	8 December 2009 / 3 years
	g.	Current Enlistment Service:	2 years, 8 months, 28 days
	h.	Total Service:	4 years, 9 months, 24 days
	i.	Time Lost:	Civil Confinement x 2: (110522-110705) for 45 days 				and (110707-110724) for 18 days, a total of 63 days
	j.	Previous Discharges:	ARNG (061113-0070625) / NA
			ADT    (070626-071019) / HD
			ARNG (081118-081130) / GD
			USAR (081201-091207) / NA
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	11B (Infantryman)
	m.	GT Score:	108
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (090901-100522)
	q.	Decorations/Awards:	ARCOM; AAM; 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 enlisted in the Regular Army on 8 December 2009, for a period of 3 years.  He was 21 years old at the time of entry and a high school graduate.  He served in Iraq.  He earned an ARCOM and an AAM.  His record of service reflects he completed 4 years, 9 months, and 24 days of military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 1 August 2011, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct, specifically for the following offenses:

      a.  being arrested for DUI
      b.  disobeying a lawful order 
      c.  consuming alcohol while enrolled in ASAP
      d.  failing to report for duty
      
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 2 August 2011, the applicant was afforded the opportunity to consult with legal counsel, was advised of the impact of the discharge action, and did not submit a statement on his 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 15 August 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 separated on 18 August 2011, under Army Regulation 635-200, Chapter 14-12c, for misconduct (Serious Offense), with a general, under honorable conditions discharge, an SPD code of JKQ and an RE code of 3.

6.  The applicant’s record contains two periods of lost time for civil confinement for a total of 63 days.  One period is not explicitly documented, but reflected in the applicants DD Form 214, and one period is documented in the record, but not properly documented on DA Form 4187.   




EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The applicant received one field grade Article 15, dated 16 May 2011, for disobeying a superior commissioned officer by consuming alcohol (110424); his punishment consisted of a reduction to the grade of E-1, forfeiture of pay in the amount of $733 for two months, 45 days of extra duty and restriction.

2.  Three negative counseling statements dated between 10 May 2011 and 16 May 2011, for driving under the influence of alcohol, reporting to work while incapacitated by consumption of alcohol, and missing formations.

3.  An incident offense report, dated 19 March 2011, that reported the applicant was incarcerated in a county jail for operating a vehicle while drunk. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a self-authored statement and DD Form 214 for service under current review.

POST-SERVICE ACTIVITY: 

The applicant provided none.

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 service record 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 standards for acceptable conduct and performance of duty by military personnel.  The applicant by violating the Army's policy not to abuse alcohol, compromised the special trust and confidence placed in a select Soldier.  The applicant, as a Soldier, had the duty to support and abide by the Army's alcohol abuse policies.  By abusing alcohol, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge.  

3.  The applicant contends the discharge was unjust because he spent nearly two months in jail for protecting his battle buddy and his experience during deployment contributed to his alcohol issue.  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 discriminated.  In fact, the applicant’s Article 15 and negative counseling statements justify a pattern of misconduct.  The applicant’s statements alone do 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.

4.  The applicant has expressed his desire to rejoin the Service, to have better job opportunities and the benefits of the GI Bill.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  At the time of discharge the applicant was appropriately assigned a reentry eligibility (RE) code of 3.  There are no basis upon which to grant a change to the reason or to the RE code.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate.  Further, 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 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.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

6.  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:  24 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                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20130000106



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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