IN THE CASE OF:  	Mr.

      BOARD DATE:  	3 May 2013

      CASE NUMBER:  	AR20130000719
___________________________________________________________________________

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 his general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, his discharge was based on one incident of misconduct.  He contends prior to his incident of misconduct he had no other misconduct and had served honorably to include 17 months in Iraq.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		10 January 2013	
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			25 November 2009
d. Reason/Authority/SPD/RE Code:	Misconduct (Civil Conviction), AR 635-200, Chapter 						14, Section II, JKB, RE-3
e. Unit of assignment:			1/75th AR MTR Recon, Fort Campbell, KY
f. Current Enlistment Date/Term:	13 July 2006, for 4 years and 16 weeks
g. Current Enlistment Service:	2 years, 5 months, 14 days
h. Total Service:			2 years, 5 months, 14 days
i. Time Lost:				329 days	
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	11C10, Indirect Fire Infantryman
m. GT Score:				108
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (070916-081016)
q. Decorations/Awards:		NDSM, ICM-w/CS, GWOTSM, ASR
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 13 July 2006, for a period of 4 years and          16 weeks.  He was 18 years old at the time of entry and a high school graduate.  He served one combat tour in Iraq.  He completed 2 years, 5 months, and 14 days of total active duty service.




SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 23 September 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, Section II, AR 635-200, by reason of misconduct (civil conviction) for negligently discharging a firearm on 3 April 2009.

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge.

3.  On 24 October 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived his right to have his case heard by an administrative separation Board, and did submit a statement on his own 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 with a general, under honorable conditions discharge.  

4.  On 12 November 2009, 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 from the Army on 25 November 2009, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, Section II, AR 635-200, for misconduct (civil conviction), a Separation Program Designator code (SPD) of JKB and an RE code of 3. 

6.  The applicant's record shows he was confined by civilian authorities, for 329 days during the period 27 December 2008 through 25 November 2009.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

A Court Order from the Superior Court of California, County of Sacramento dated,                   29 December 2008.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant submitted no additional evidence with his application. 








POST-SERVICE ACTIVITY: 

None provided by the applicant.

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 record of service, his military records, 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 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 misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by his civil conviction for discharging a firearm.


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 his discharge was based on a one time incident, that he had good service to include his 17-month deployment to Iraq and deserves an honorable characterization of service.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  

5.  Furthermore, 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.  

6.  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.  The character of the applicant’s discharge is commensurate with his overall service record.  

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?  NA 

Counsel: None

Witnesses/Observers: NA 














Board Vote:
Character Change:  	No Change:  
Reason Change:		No Change:  
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:	
Change Characterization to:	
Change Reason to:	
Change Authority for Separation:
Change RE Code to:	
Grade Restoration to:	
Other:




























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)		AR20130000719



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1