IN THE CASE OF:  Mr. 

      BOARD DATE:  	15 July 2013

      CASE NUMBER:  	AR20130000198
___________________________________________________________________________

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.

Additionally, the Board viewed the inclusion of an incident from a prior period of enlistment, specifically riding a motorcycle while drunk on 11 October 2008, for the purpose of determining the characterization of service for the period under consideration, was harmless error.  The applicant’s record of service was marred by three negative counseling statements and a GOMOR. 




      
      
      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 from general, under honorable conditions to honorable and a change to the narrative reason for separation.

2.  He states through his attorney, in effect, he was discharged for commission of a serious offense, where the underlying offense was an allegation resulting from a pending DUI case in Montgomery County Tennessee.  His civilian defense counsel objected to the separation board; the objection was based on the fact that the misconduct was unproven.  When the command initiated separation action, he requested the separation proceedings be halted. Despite this request, the command proceeded with the action and he was subsequently discharged.  Since his separation from the Army, the underlying case has been dismissed and he always maintained his innocence.  He was a stellar performer in the Special Forces.  The government violated his right to privacy when the recorder showed private information to witnesses being called at the hearing; this unfair and illegal tactic was the primary reason the applicant was discharged.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		17 December 2012
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			12 October 2011
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			B Co, 3-5th Special Forces Group (Airborne)							Fort Campbell, KY
f. Current Enlistment Date/Term:	14 January 2011, 3 years
g. Current Enlistment Service:	8 months, 29 days 
h. Total Service:			6 years, 2 months, 29 days
i. Lost time:				None
j. Previous Discharges:		RA-(050714-110113)/HD
k. Highest Grade Achieved:		E-6	
l. Military Occupational Specialty:	18E30, Special Forces Communications Sergeant
m. GT Score:				131
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq x 3 (071218-080601), (090105-090723) 							(100801-110329)
q. Decorations/Awards:		AAM, AGCM, NDSM, ICM-W/3 CS, GWOTSM							NPDR-2, ASR, OSR, SF TAB
r. Administrative Separation Board: 	Yes
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes
u. Prior Board Review:			No


SUMMARY OF SERVICE:	

The applicant's record shows he enlisted in the Regular Army on 14 July 2005, for a period of 6 years.  He was 18 years old at the time of entry and a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 18E30, Special Forces Communications Sergeant.  He reenlisted 14 January 2011, for 4 years and was 23 years old at the time.  He was serving at Fort Campbell, KY, when his discharge was initiated.  His record also shows he served three combat tours and earned several awards including an AAM and AGCM.  He achieved the rank of SSG/E-6.

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence contained in the applicant’s service record indicates that on 29 June 2011, 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-commission of a serious offense for his second DUI during his career.  Specifically for the following offenses:

     a.  riding a motorcycle while drunk (081011)

     b.  driving a sport utility vehicle while drunk (110604)

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

3.  On 7 July 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board 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 with a general, under honorable conditions discharge.  

4.  On 8 July 2011, the applicant was notified to appear before an administrative separation board and advised of his rights.  

5.  On 31 August 2011, the administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with characterization of service of general, under honorable conditions.

6.  On 16 September 2011, the separation authority approved the findings and recommendations of the administrative separation board and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

7.  The applicant was discharged from the Army on 12 October 2011, 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), a Separation Program Designator code (SPD) of JKQ and a RE code of 3.
8.  The applicant’s service record does not contain any documented evidence of unauthorized absences or time lost or any recorded actions under the Uniform Code of Military of Military Justice (UCMJ).

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains an NCOER covering the period of 1 June 2010 through 31 May 2011, which the applicant was rated “Among the Best,” 2/1, successful/superior.

2.  He received three negative counseling statements dated 13 April 2011, 28 June 2011 and 30 June 2011 for unacceptable behavior, his second DUI and mandatory debt counseling.

3.  The record of evidence contains a General Officer Memorandum of Reprimand (GOMOR), dated 2 August 2011, for refusing to take a lawfully requested test to measure the alcohol content of his breath for reasonable belief he was driving under the influence of alcohol, (administrative).

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided an online application; Attorney’s Letter; Letter, Circuit Court Montgomery County; DD Form 214; and Discharge Orders 266-0612.

POST-SERVICE ACTIVITY:

The applicant did not provide any 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.

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned a SPD Code of "JKQ" will be assigned a RE Code of 3.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and a change to the narrative reason for separation was carefully considered.  However, after examining his military record, the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for separation.

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 of his service below that meriting an honorable discharge.  The applicant’s record of service was marred by three negative counseling statements and GOMOR.

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 requested a change to the narrative reason for separation.  However, Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for misconduct (serious offense).  The regulation further stipulates that no deviation is authorized.  

5.  Further, the SPD Code/RE Code Cross Reference Table shows that a Soldier assigned a SPD Code of "JKQ" will be assigned a RE Code of 3.  

6.  The applicant contends he was discharged for commission of a serious offense, where the underlying offense was an allegation resulting from a pending DUI case.  The record of evidence shows on 2 August 2011, he refused to take a lawfully requested intoximeter test to measure the alcohol content of his breath for reasonable belief he was driving under the influence of alcohol. 

7.  The applicant contends his civilian defense counsel objected to the separation board and the objection was based on the fact the misconduct was unproven.  On 24 June 2011, he violated the implied consent law when he refused to submit to an intoximeter test in the state of Tennessee.  Further, the record shows on 7 July 2011, the applicant requested consideration of his case by an administrative separation board and was represented by defense counsel and could have raised the issue at the time.  

8.  Also, 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 contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention he did not commit a serious offense.  

9.  The applicant further contends when the command initiated separation action, he requested the separation proceedings be halted; despite this request the command proceeded with the action and he was subsequently discharged.  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.

10.  The applicant also contends since his separation from the Army, the underlying case has been dismissed and he always maintained his innocence.  However, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated 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.

11.  The applicant additionally contends he was a stellar performer in the Special Forces.  The applicant’s service accomplishments and the quality of his service prior to the incident which caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to overcome the reason for discharge and characterization of service granted.  

12.  Furthermore, the applicant contends the government violated his right to privacy when the recorder showed private information to witnesses being called at the hearing; this unfair and illegal tactic was the primary reason the applicant was discharged.  The record shows the applicant was discharged for commission of a serious offense (driving under the influence of alcohol).  The rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.
13.  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:  15 July 2013         Location:  Washington, DC

Did the Applicant Testify:  NA

Counsel:  Phillips Law, PLLC, Attn:  Mr. James Phillips, 215 Franklin Street, Suite 301               Clarksville, TN 37040

Witnesses/Observers: NA

Board Vote:
Character Change:  1	No Change:  4
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)		AR20130000198



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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