IN THE CASE OF:  	Mr. 

      BOARD DATE:  	12 April 2013

      CASE NUMBER:  	AR20130000211
___________________________________________________________________________

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 of his discharge from general, under honorable conditions to honorable.

2.  The applicant states, in effect, prior to his discharge he was having problems with his back and with an upgrade of his discharge he would be able to receive VA benefits.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		17 December 2012		
b. Discharge Received:		General, Under Honorable Conditions		
c. Date of Discharge:			26 April 2010	
d. Reason/Authority/SPD/RE Code:	 Misconduct, AR 635-200, Chapter 14-12c, JKQ,							RE-3	
e. Unit of assignment: 			HHC, 1/5th In Bn, Fort Hood, TX	
f. Current Enlistment Date/Term:	6 March 2007, for 4 years and 17 weeks		
g. Current Enlistment Service:	3 years, 1 month, 21 days	
h. Total Service:			3 years, 1 month, 21 days	
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	13F10/Fire Support Specialist
m. GT Score:				104
n. Education:				NIF
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (070819-080120 and 090110-091212)
q. Decorations/Awards:		AAM, AGCM, ICM-w/CS, NDSM, GWOTSM, 							ASR,OSR-2
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 March 2007, for a period of four years and    17 weeks.  He was 23 years old at the time of entry.  He served for 3 years, 1 month and        21 days and was discharged for misconduct, specifically for wrongfully communicating a threat to several individuals, committing an assault with a dangerous weapon, and disobeying a lawful order from a noncommissioned officer.  His service record reflects he served two combat tours, achieved the rank of SPC/E-4, and earned an AAM.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that on 8 March 2010, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c,             AR 635-200, for misconduct (serious offense), specifically for:

      a. wrongfully communicating a threat to several individuals
      b. committing assault with a dangerous weapon 
      c. disobeying a lawful order from a noncommissioned officer

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 12 March 2010, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board, which he was not entitled to, and indicated his intention submit a statement on his behalf which was not found in the record.  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.   

4.  On 2 April 2010, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions under the provisions of AR 635-200, paragraph 14-12c, for the commission of serious offenses.

5.  The applicant was separated on 26 April 2010, under Army Regulation 635-200, Chapter 14-12c (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 service record does not contain any evidence of unauthorized absences or time lost.  





EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 19 November 2009, assault on a noncommissioned officer 26 September 2009, disobeying a lawful order from a noncommissioned officer 4 October 2009, wrongfully communicating a threat to another Soldier x 2 12 October 2009, and wrongfully communicating a threat on another Soldier x 2 on 13 October 2009.  The punishment consisted of reduction to E-2, forfeiture of $784.00 pay per month for two months, and extra duty and restriction for 45 days (FG).

2.  There are three negative counseling’s dated between 26 September 2009 and 13 October 2009 for numerous instances of being disrespectful towards a noncommissioned officer, assault on another individual, and disobeying a lawful order.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided no additionally documents with his application.

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 record of service, his military records, the document 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 an Article 15 for violations of the Uniform Code of Military Justice and numerous negative counseling.

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 submitted no issues of equity or propriety to be considered by the Board.

5.  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: 12 April 2013     Location: Washington, DC

Did the Applicant Testify?  NA

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:	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)		AR20130000211



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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