IN THE CASE OF:  	

      BOARD DATE:  	15 May 2013

      CASE NUMBER:  	AR20130000472
___________________________________________________________________________

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 from general, under honorable conditions to honorable.  

2.  The applicant states, in effect, the discharge was inequitable because he displayed outstanding service and received many awards and promotions.  He began to have problems managing his pain caused by injuries to his right ankle.  He told his chain of command about his issues wearing full body armor, requested light duties but it was denied.  He was misinformed about the discharge process and unknowingly signed discharge papers before being medically evaluated.  He was prescribed several medications for his injuries that caused extreme drowsiness.  He requests an upgrade of his discharge in order to receive assistance for his injuries and help with school in order to return to a normal life.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		7 January 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			6 April 2011
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 14-12c						JKQ, RE-3        
e. Unit of assignment:			A Co, 426th Bde Spt Bn, Fort Campbell, KY
f. Enlistment Date/Term:		14 January 2009,  3 years, 25 weeks
g. Current Enlistment Service:	2 years, 2 months, 23 days
h. Total Service:			2 years, 2 months, 23 days
i. Time Lost:				None
j. Previous Discharges:		None 
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	92W10, Water Treatment Specialist
m. GT Score:				115
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Afghanistan (100517-110320)
q. Decorations/Awards:		ARCOM, NDSM, ACM-CS, GWOTSM, ASR, OSR 						CAB, MUC, VUA
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 14 January 2009, for a period 3 years and 25 weeks, he was 19 years old at the time and a high school graduate.  When his discharge proceedings were initiated he was serving in Afghanistan.  His record shows he served a total of 2 years, 2 months and 23 days and was awarded an ARCOM and a CAB.

SEPARATION FACTS AND CIRCUMSTANCES

1.  The record shows that on 25 February 2011, 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. found sleeping on his post while in a combat zone
      b. communicating threats
      c. numerous instances of failing to report 
      
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 28 February 2011, the applicant consulted with a member of Trial Defense Services (TDS) in reference to his rights under the separation, he complained about his medical injuries and refused to sign his election of rights.  The record indicates the applicant was informed about his rights under paragraph 2-2c, Army Regulation 635-200.  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 4 March 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 discharged on 6 April 2011, for misconduct (serious offense), under the provisions of Chapter 14-12c, AR 635-200, with a SPD code of JKQ and a RE code of 3.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  Summarized Article 15, issued on 14 October 2010, for 3 specifications of failure to report (100920, 100923, and 100925).  His punishment consisted of 14 days of extra duty and restriction.

2.  Field Grade Article 15, issued on 30 December 2010, for sleeping on his guard post (101113).  His punishment consisted of reduction to E-2 (suspended), forfeiture of pay in the amount of $811.00, extra duty and restriction for 45 days.

3.  The suspended sentence of reduction to the grade of E-2 was vacated on 12 January 2011 for a new offense of sleeping while on guard duty.

4.  Company Grade Article 15, issued on 22 January 2011 for sleeping on his guard post while at FOB Fenty (110107), and wrongfully communicating a threat to another Soldier (110104).  His punishment consisted of reduction to E-1, forfeiture of pay in the amount $342.00, extra duty and restriction for 14 days.

5.  Four negative counseling’s dated between 9 September 2010 and 7 January 2011, for sleeping on guard duty.

EVIDENCE SUBMITTED BY THE APPLICANT 

Statement of support, DD Form 214, medical documents (10 pages), mentor’s letter of support.

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, 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 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 his serious misconduct, the applicant diminished the quality his service below that meriting an honorable discharge.  

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 contends he was misinformed about the medical process, that he had good service, was denied light duty and is asking for medical and educational benefits based on his good service.  However, the record indicates that on 28 February 2011, he consulted with a member of TDS who informed him of his rights and advised him to seek medical attention prior to his discharge.  The record also shows that on 25 January 2011 the applicant received a medical examination and was found qualified for service.  Further, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  The applicant’s record was marred by 3 Articles 15 for multiple violations of the Uniform Code of Military Justice and several negative counseling statements.

5.  Careful consideration was given to the applicant’s in-service accomplishments and the quality of his service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of the discharge.

6.  The applicant’s 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.  

7.  The applicant contends that an upgrade of his discharge would allow him to receive medical and educational benefits through the use of the GI Bill.  However, eligibility for veteran's benefits to include medical and 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.

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?  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
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	UOTH - Under Other Than                           			               Honorable
ADRB Case Report and Directive (cont)		AR 20130000472

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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