IN THE CASE OF:  	Mr. 

      BOARD DATE:  	15 July 2013

      CASE NUMBER:  	AR20130000501
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and notwithstanding the Discussion and Recommendation which follows, the Board determined the characterization of service was improper.  The Board noted that Army Regulation 635-200 requires the separation authority to state on the record that the misconduct from a previous enlistment was not considered for the purpose of characterization, the absence of such a statement makes the record irregular.  Accordingly, the Board voted to grant full relief in the form of an upgrade of the characterization of service to honorable.  The Board determined the reason for discharge was proper and equitable and voted not to change it.  




      
      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, that he was falsely accused of threatening an NCO and his actions were taken out of context.  His case was decided based on one statement from a Soldier who claimed to have heard what he said and ended up being a twisted story which was used to pass judgment on him.  Since his discharge he has worked for a defense contractor in good standing with Army.  He is required to have a Top Secret clearance which he has maintained.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		8 January 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			27 October 2009
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 14-12c, 						JKQ, RE-3        
e. Unit of assignment:			HHC, 1st Bn, 3d Aviation Regiment, Hunter AAF, GA
f. Enlistment Date/Term:		5 March 2008, 4 years
g. Current Enlistment Service:	1 years, 7 months, 23 days
h. Total Service:			5 years, 7 months, 3 days
i. Time Lost:				None
j. Previous Discharges:		RA (040325-061003), HD 										RA (061004-080304), HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	35F10, Intelligence Analyst
m. GT Score:				114
n. Education:				HS Graduate
o. Overseas Service:			SWA, Germany
p. Combat Service:			Iraq (070507-080722)
q. Decorations/Awards:		ARCOM, AAM, AGCM, NDSM, ICM-CS, 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 25 March 2004, reenlisted on 4 October 2006 and again on 5 March 2008, for a period of 4 years.  He was 23 years old at the time of his last reenlistment and a high school graduate.  His record contains several awards including an ARCOM, an AAM, and an AGCM.  He served a combat tour in Iraq between May 2007 and July 2008.  When his discharge proceedings were initiated he was serving at Hunter Army Air Field, GA.

SEPARATION FACTS AND CIRCUMSTANCES

1.  The record shows that on 2 October 2009, 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 the following offenses:

      a. Wrongfully communicating to another Soldier, a threat to kill SFC R and 		SFC E (090815)
      
      b. Found guilty during Article 15 proceedings on 15 October 2007, for disobeying a lawful order, making a false statement and unlawfully altering a public record
      
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 13 October 2009, the applicant consulted with legal counsel, 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 separation action and recommended approval with a general, under honorable conditions discharge.  

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 on 27 October 2009, for misconduct (serious offense), under the provisions of AR 635-200, paragraph 14-12c, with an SPD code of JKQ and a reentry code of 3.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  A Company Grade Article 15 for failure to report (090612).  Page of 2 of this Article 15 is not contained in the record.

2.  Nine counseling statements dated between 17 February 2009 and 12 June 2009.  Some of these counseling’s were performance reviews.  However, several of them were related to offenses of failure to comply with plan of action, loss of ID card, failure of the Army Physical Fitness Test, and lying to an NCO.



EVIDENCE SUBMITTED BY THE APPLICANT 

Transmittal letter from the State of Ohio, Veterans Service Commission.

POST-SERVICE ACTIVITY: 

The applicant states that he has been working for a defense contractor in good standing with the Army and has maintained a top secret clearance.

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 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 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 threat to kill two senior NCOs during the upcoming unit deployment, 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 the applicant’s service mitigated the misconduct or poor duty performance.  

4.  The applicant contends the discharge was unjust because he was falsely accused of threatening an NCO and his actions were taken out of context.  His case was decided based on one statement from a Soldier who claimed to have heard what he said and ended up being a twisted story and was used to pass judgment on him.  However, the record contains a detailed sworn statement, dated 16 September 2009, from the Soldier to whom he personally relayed that if he could kill those two NCOs, referring to SFC R and SFC E, he would.  This statement was a direct and personal account of the events that took place and not hearsay or a twisted story as the applicant contends.  The applicant’s chain of command determined this was a credible threat and properly initiated discharge proceedings.

5.  The unit commander’s notification memorandum dated 2 October 2009, contained offenses the applicant committed in a prior period of service.  Specifically, an Article 15 the applicant received on 15 October 2007.  The government’s presumption of regularity cannot be applied in this case because the command used misconduct from a previous enlistment and the separation authority did not specifically state the earlier misconduct was not considered for the purpose of characterization.  Army Regulation 635-200 specifically requires the separation authority to state on the record that the misconduct from a previous enlistment was not considered for the purpose of characterization, the absence of such a statement makes the record irregular and the Army Discharge Review Board must consider this as an issue of fact when determining the applicant’s characterization of service.

6.  The applicant also contends that since his discharge he has worked for a defense contractor in good standing with Army and is required to maintain a Top Secret clearance.  The applicant’s post-service accomplishments have been noted; however, in review of the applicant’s entire service record and the reasons for the discharge, it appears these accomplishments did not overcome the reason for discharge and characterization of service granted.  

7.  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:  Personal Appearance  	Date: 15 July 2013	Location: Washington, DC

Did the Applicant Testify?   Yes

Counsel:  			None

Witnesses/Observers: 	None

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

1.  The applicant submitted the following additional documents:  None

2.  The applicant presented the additional contention:	None

In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

Board Vote:
Character  	Change:  3	No Change:  2  
Reason	Change:  0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:	 	Yes
Change Characterization to:	Honorable
Change Reason to:			NA
Change RE Code to:		NA
Grade Restoration to:		NA
Change Authority for Separation:	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	UOTH - Under Other Than                           			               Honorable Conditions
ADRB Case Report and Directive (cont)		AR 20130000501

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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