IN THE CASE OF:  	

      BOARD DATE:  	1 May 2013

      CASE NUMBER:  	AR20130000538
___________________________________________________________________________

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, that he was a great Soldier in the U.S. Army and loved his job as an Airborne Engineer.  At the time when he served, he came down on orders for Italy for a two year assignment.  His wife and kids did not want to go and he could not do the assignment without his family.  He knows that he made the wrong decision and should have gone to Italy.  He probably would have been in the Army.  He made E-4 in 17 months and was getting ready to go to the E-5 board.  He would like to reenter the U.S. Army.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		21 December 2012 
b. Discharge received:			General, under honorable conditions
c. Date of Discharge:			1 November 1999
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, 14-12c, JKQ, RE-3
e. Unit of assignment:	 		618th Engineer Company, 307th Engineer Battalion 						82d Airborne Division, Fort Bragg, NC
f. Current Enlistment Date/Term:  	12 February 1997, 6 years 
g. Current Enlistment Service:  	2 years, 8 months, 0 days
h. Total Service:			5 years, 8 months, 4 days
i. Time Lost:				20 days (990616-990705) 
j. Previous Discharges:		RA (940208-970211)
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	62E1P, Heavy construction Equipment Operator
m. GT Score:				103
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, AAM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		No
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 8 February 1994, for a period of 4 years.  He was 21 years old at the time and a high school graduate.  The applicant served for a period of 3 years and reenlisted on 12 February 1997 for 6 years.  At the time his discharge proceedings were initiated he was serving at Fort Bragg, NC.

  

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 6 October 1999, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (commission of one or more serious offenses); specifically for wrongful use of a government credit card.

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 6 October 1999, the service record confirms that the applicant consulted with legal counsel and waived his right to an administrative separation board even though he was not entitled to one.  The applicant was informed in a memorandum that he had more than six years of combined reserve and active duty time; however, a recalculation of his combined service shows that he had 5 years, 10 months and 4 days of total service on the date of his initiation of recommendation for separation; therefore, he was not entitled to an administrative separation board.  

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 separated on 1 November 1999, under Army Regulation 635-200, Chapter 14-12c, for misconduct, with a general, under honorable conditions discharge, an SPD code of JKQ and a RE code of 3.

6.  The applicant’s record contains one period of lost time for being AWOL for a total of 19 days (990616-990705).  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  The applicant's disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being AWOL (990616-990705).  His punishment consisted of reduction to E-1 and extra duty for 45 days. (FG).  

2.  Several negative counseling statements that indicate the applicant was being counseled for being AWOL, late for formation, disrespectful to a NCO, missing alert call-out, letters of indebtness, failures to report, missing movement, and insufficient funds.

EVIDENCE SUBMITTED BY THE APPLICANT 

An online DD Form 293 and DD Form 214.

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 his military records, the documents and issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  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 repeated incidents of serious misconduct, the applicant diminished the quality of his service below that meriting an honorable discharge.  His service was marred by an Article 15.  

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 requests an upgrade of his characterization to honorable and contends that he came down on orders for Italy for a two year assignment, but his wife and kids did not want to go.  He realizes that not going to his assignment was the wrong thing to do.  However, by regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  It appears the applicant’s generally good record of service was the basis for his receiving a GD instead of the normal UOTHC discharge.  Furthermore, the applicant’s record shows that he was discharged for misconduct (commission of one or more serious offenses); specifically for wrongful use of a government credit card.

5.  The applicant contends that he was a good Soldier and was getting ready to go before the E-5 board.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.

6.  The applicant has requested a change to the reentry code (RE) in order to rejoin the Service.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on AR 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  There are no basis upon which to grant a change to the reason or to the RE code.  A RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 

7.  The record contains no evidence of arbitrary or capricious actions by the applicant’s command, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

8.  Records show the proper discharge procedures were followed in this case.

9.  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:    1 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)		AR20130000538



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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