IN THE CASE OF:  

      BOARD DATE:  	10 May 2013

      CASE NUMBER:  	AR20130000351
___________________________________________________________________________

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 to be 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 characterization from general, under honorable conditions to honorable.  

2.  The applicant states, in effect, that his chain of command told him he would get a general, under honorable conditions discharge and feels his offense doesn’t justify what his DD Form 214 says.  He suffered some injuries while on active duty and believes he was unfairly discharged.  He provides a detailed statement with his account of the events that led to his discharge from the Army.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 January 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			9 November 2012
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 14-12c 						JKQ, RE-3        
e. Unit of assignment:			HHC, 23d QM Brigade, Fort Lee, VA
f. Enlistment Date/Term:		18 June 2012, 3 years and 23 weeks
g. Current Enlistment Service:	4 months, 22 days
h. Total Service:			4 months, 22 days
i. Time Lost:				None
j. Previous Discharges:		None 
k. Highest Grade Achieved:		E-1	
l. Military Occupational Specialty:	None
m. GT Score:				98
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		None
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 18 June 2012 for a period of 3 years and 23 weeks, he was 21 years old at the time of entry and a high school graduate.  He was serving at Fort Lee, VA when his discharge proceedings were initiated.  His record does not show any acts of valor or significant achievement.

SEPARATION FACTS AND CIRCUMSTANCES

1.  The record shows that on 18 October 2012, 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-commission of a serious offense, specifically for having total disregard for military rules and regulations as evidenced by his act of assaulting a fellow Soldier by striking him in the face with a closed fist.

2.  Based on the above misconduct, the unit commander recommended the applicant’s discharge with service uncharacterized.

3.  On 23 October 2012, the applicant waived legal counsel, waived administrative separations board, although not entitled, 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 an uncharacterized discharge.

4.  On 6 November 2012, the separation authority waived further rehabilitation and directed an uncharacterized discharge.

5.  The applicant was discharged on 9 November 2012, for misconduct (serious offense), under the provisions of Chapter 14-12c, with an SPD code of JKQ and a RE code of 3.

6.  The service record contains no evidence of lost time.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  A Field Grade Article 15, dated 10 October 2012, for assaulting another Soldier by striking him above the eye with a closed fist.  His punishment consisted of a forfeiture of pay in the amount of $745.00 per month for two months.

2.  Four negative counseling statements dated between 17 September 2012 and 30 October 2012, for assault, UCMJ violation, notification of intent to separate him from the Army, and notification of Article 15 proceedings.

3.  A Military Police Report dated 18 September 2012 which shows the applicant as the subject of an investigation for assault and battery.

EVIDENCE SUBMITTED BY THE APPLICANT 

A self-authored statement, copy of congressional correspondence, DD Form 214, four pages of medical records, and a request for financial status.  


POST-SERVICE ACTIVITY: 

None provided 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 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 service 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 serious misconduct, the applicant diminished the quality his service below that meriting an honorable discharge.  The applicant’s record of service was marred by a Field Grade Article 15 and several negative counseling statements.  

3.  The applicant contends that he was unfairly discharged and was told he was going to get a general, under honorable conditions discharge.  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 or entitled to a general, under honorable conditions discharge.  In fact, the applicant’s assault and battery offense justify his discharge for the commission of a serious offense.  The applicant’s statements alone do not overcome the government’s presumption of regularity.

4.  Further, a general, under honorable conditions is not authorized for someone who is within the first 180 days of continued active duty service as established by Army Regulation 635-200.

5.  Moreover, 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.   

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: 10 May 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 RE Code to:			No Change
Grade Restoration to:			NA
Change Authority for Separation:		No Change

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	UOTH - Under Other Than                           			               Honorable
ADRB Case Report and Directive (cont)		AR 20130000351

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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