IN THE CASE OF:  	Mr. 

      BOARD DATE:  	15 May 2013

      CASE NUMBER:  	AR20130000114
___________________________________________________________________________

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 general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, he was unjustly discharged.  He contends his discharge was motivated and unduly biased by slander perpetrated by members of his chain of command with the intent of making him an example to silence complaints.  His records will show that he has never been a problem or an unruly individual.  The charges against him by the state of Tennessee were dropped; however, his command decided to discharge him.  He also contends, his current characterization of service has affected his ability to receive unemployment, GI Bill education benefits, and a decent job.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		26 December 2012	
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			16 March 2012	
d. Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200,								14-12c, JKQ, RE-3
e. Unit of Assignment:			USA MEDDAC, Fort Campbell, KY
f. Current Enlistment Date/Term:	6 July 2006, 6 years
g. Current Enlistment Service:	5 years, 8 months, 11 days
h. Total Service:			5 years, 8 months, 11 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	68D10, Operating Room Specialist
m. GT Score:				120
n. Education:				HS Graduate	
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		AGCM, NDSM, GWOTSM, ASR
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 6 July 2006 for a period of 6 years.  He was      18 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupation specialty (MOS) 68D10, Operating Room Specialist.  He earned an AGCM and completed 5 years, 8 months, and 11 days of total active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 1 March 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct (serious offense) for the wrongful possession of an unregistered weapon (110827) which resulted in his arrest.

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

3.  On 1 March 2012, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action and submitted a statement on his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  

4.  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 discharged from the Army on 16 March 2012, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A Military Police Report, dated 27 August 2011, that indicates the applicant was the subject of an investigation for unlawfully carrying or possessing an unregistered firearm.

2.  Two negative counseling statements, dated between 25 January 2012 and                        26 January 2012, concerning separation actions and the relinquishing custody of all his weapons.

3.  The record contains no actions under the Uniform Code of Military Justice.



EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant submitted not additional documents.

POST-SERVICE ACTIVITY: 

None were provide 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 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 fully honorable discharge.  The applicant’s record of service was marred by his incident of misconduct of possessing an unregistered weapon.

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.  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.  

4.  The applicant contends he was unjustly discharged.  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 discharged.  In fact, the applicant’s incident of having an unregistered weapon justifies a serious violation of the Uniform Code of Military Justice.   

5.  The applicant also contends the charges against him were dropped by the state of Tennessee.  However, 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.

6.  The applicant expressed that his current characterization of service has affected his ability to receive unemployment and education benefits and decent job opportunities.  However, the Board does not grant relief for the purpose of gaining employment or enhancing.  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.

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: 15 May 2013    Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA 

Board Vote:
Character Change:  2	No Change:  3
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:	NA
Change RE Code to:		NA
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)		AR20130000114



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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