IN THE CASE OF:  	

      BOARD DATE:  	3 May 2013

      CASE NUMBER:  	AR20130000507
___________________________________________________________________________

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 under other than honorable conditions to general, under honorable conditions.

2.  He states, in effect, that his discharge prevents him from obtaining a job to make an honest living.  He was young and misguided at the time of his discharge.  There was a lot of corruption in his unit and he just following a poor lead.   

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		4 January 2013
b. Discharge Received:		Under Other Than Honorable Conditions 
c. Date of Discharge:			4 August 2009
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, Chapter 						14-12c, JKQ, RE-3
e. Unit of assignment:			HSC, 3-3rd Special Forces Group (ABN)								Fort Bragg, NC
f. Current Enlistment Date/Term:	31January 2008, 3 years
g. Current Enlistment Service:	1 year, 5 months, 13 days 
h. Total Service:			3 years, 6 months, 10 days
i. Lost time:				23 days
j. Previous Discharges:		RA-(060103-080130)/HD
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	92Y10, Unit Supply Specialist
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan x 2 (071019-080507), (060828-070311)
q. Decorations/Awards:		ARCOM, AAM, NDSM, ACM-W/2 CS, GWOTSM						ASR, NATOMDL
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant's record shows he enlisted in the Regular Army on 3 January 2006, for a period of 3 years, 19 weeks.  He was 18 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 92Y, Unit Supply Spec.  He reenlisted on 31 January 2008 for 6 years and was 20 years old at the time.  He was serving at Fort Bragg, NC, when his discharge was initiated.  He achieved the rank of SPC/E-4.  His record also shows that he served two combat tours and earned awards which included an ARCOM and an AAM.

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence contained in the applicant’s service record indicates that on 24 June 2009, 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.  Specifically for the following offenses: 

    a.  pleading guilty at a Summary Court-Martial to 12 counts of violating Article 108, wrongful disposition of government property (090527).
         
    b.  for failing two consecutive record Army Physical Fitness Tests (APFT) (080922, 091209).        

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

3.  On 25 June 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived 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 and senior commanders reviewed the proposed action and recommended approval of an under other than honorable conditions discharge.  

4.  On 1 July 2009, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions. 

5.  The record shows the applicant was confined by military authorities during the period        27 May 2009 through 18 June 2009, for 23 days.  

6.  The applicant was discharged from the Army on 4 August 2009, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator (SPD) code of JKQ and a RE code of 3. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A Summary Court-Martial, dated 27 May 2009, for without proper authority, sell to Parker Pawn, one Dell Computer, of a value of more than $500, military property of the United States (090202); without proper authority, sell to Cash Converters, one Dell 17” monitor, of a value of more than $500, military property of the United States (090309); without proper authority, sell to Jim’s Pawn Shop, five Blade Benchmark Knives, of a value of more than $500.00, military property of the United States (090330); without proper authority, sell to Jim’s Pawn Shop, four M4 Rail Systems, of a value of more than $500, military property of the United States(080711); without proper authority, sell to Jim’s Pawn Shop, five Surefire Flashlights, of a value of more than $500, military property of the United States (080808); without proper authority, sell to Parker Pawn, one Dell Laptop, of a value of more than $500, military property of the United States (080805); without proper authority, sell to Parker Pawn, one Circular Saw, of a value of more than $500, military property of the United States (080620); without proper authority, sell to Cash Converters, one Jigsaw, of a value of more than $500, military property of the United States (080609); without proper authority, sell to Parker Pawn, one Cordless Drill, of a value of more than $500 military property of the United States (080620); without proper authority, sell to Cash Converters, one Corded Drill, of a value of more than $500, military property of the United States (080609); 9 June 2008, without proper authority, sell to Cash Converters, one Double Bevel, of a value of more than $500, military property of the United States (080609); without proper authority, sell to Jim’s Pawn Shop, one Toolbox, of a value of more than $500, military property of the United States (080513);  the punishment consisted of reduction to E-1, forfeiture of $933 pay x 1 month and confinement for 30 days.

2.  The record contains a CID Report of Investigation, dated 19 April 2009, that shows the applicant was under investigation for selling government property to local pawn shops.

3.  There are two negative counseling statements that were done on 23 September 2008 and   10 December 2008, for failing the Army Physical Fitness Test (APFT).
 
EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 293, dated 14 December 2012/with an issues statement; Common Wealth of Virginia Training Record, 24 May 2012; and a Certificate, Unarmed Security Officer Training, 13 May 2012.

POST-SERVICE ACTIVITY: 

The applicant states he coaches and mentors young football players and neighborhood kids.  He has taken several security and loss prevention classes to help deter theft.

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 his military records, the issues and documents 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 incidents of misconduct, the applicant diminished the quality of his service below that meriting a general, under honorable conditions 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 his discharge prevents him from obtaining a job to make an honest living.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

5.  The applicant further contends he was young and misguided at the time of his discharge.  The record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service. 

6.  The applicant also contends there was a lot of corruption in his unit and he was just following a poor lead.  The applicant bears the burden of presenting 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 that corruption was in his unit.  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.   

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:  Records Review    Date:  3 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	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20130000507

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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