IN THE CASE OF:  	

      BOARD DATE:  	5 April 2013

      CASE NUMBER:  	AR20130000753
___________________________________________________________________________

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, that he had personal problems with the First Sergeant and was going to go before a medical board for sleep walking but the 1SG did not allow it.  He was also having family issues because his wife left him and his grandfather died.  All this happened right after his return from Iraq which caused his mental instability and made him feel like he needed to get out.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		9 January 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			9 February 2011
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200
      paragraph 14-12c, JKQ, RE-3        
e. Unit of assignment:			RD, 1st Bn, 66th AR Regiment, Fort Carson, CO
f. Enlistment Date/Term:		9 July 2010, 4 years, 17 weeks
g. Current Enlistment Service:	7 months, 1 day
h. Total Service:			4 years, 11 months, 24 days
i. Time Lost:				None
j. Previous Discharges:		RA (080309-100708), HD 
k. Highest Grade Achieved:		E-3	
l. Military Occupational Specialty:	19K10, M1 Armor Crewman
m. GT Score:				101
n. Education:				GED
o. Overseas Service:			SWA
p. Combat Service:			Iraq (080309-090309)
q. Decorations/Awards:		ARCOM, ICM-2, GWOTSM, ASR, OSR, CAB
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 16 February 2006, he had a high school equivalency.  He was trained at Fort Knox, KY and assigned to Fort Hood, TX.  He served in Iraq between March of 2008 and March of 2009.  On 9 July 2010, he reenlisted for a period 4 years and 17 weeks, he was 24 years old at the time.  When his discharge proceedings were initiated he was serving at Fort Carson CO.  His records show he was awarded an ARCOM and a CAB.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  The service record shows that on 21 January 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. numerous instances of failing to report to his designated place of duty 
      b. failing to obey a lawful order from a commissioned officer
      
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 26 January 2011, 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 action and recommended approval with a general, under honorable conditions discharge.  

4.  On 26 January 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 9 February 2011, for misconduct (serious offense), under the provisions of Chapter 14-12c, 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.  Article 15 dated 3 December 2010, for failure to obey a lawful order from a commissioned officer to provide spousal support (100910).  His punishment consisted of reduction to the grade of E-1, forfeiture of pay in the amount of $337.00, extra duty for 14 days and 14 days of suspended restriction (CG)

2.  Article 15 dated 9 July 2010, for two instances of failing to report (100614, 100628).  His punishment consisted of reduction to the grade of E-2, suspended forfeiture in the amount of $378.00, and 14 days of extra duty (CG)

3.  There are 10 negative counseling statements dated between 12 July and 26 October 2010, for failing to provide spousal support, failing to report to his designated place of duty on multiple occasions, being overweight, and initiation of discharge proceedings.

4.  A mental health evaluation dated 25 October 2010, in which the medical examiner indicated the applicant had sleep walking problems which had persisted and diagnosed him with an adjustment disorder, alcohol dependence in remission and a sleep walking disorder.

EVIDENCE SUBMITTED BY THE APPLICANT 

A DD Form 214 for the period under review.

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 issues and document 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.  By the repeated incidents of misconduct, the applicant diminished the quality of his service below that meriting an honorable discharge.  The applicant’s service was marred by two company grade Articles 15 for multiple violations of the UCMJ and numerous negative counseling statements.

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 that he was having personal problems and family issues that affected his behavior and ultimately caused him to be discharged.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  The service record does not contain any 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.  

5.  The applicant also contends that he was going to a medical evaluation board and the First Sergeant put a stop to it.  However, Department of Defense disability regulations do not preclude a disciplinary separation while undergoing medical board proceedings.  The appropriate Army Regulation stipulates that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through a Medical Evaluation Board and is subsequently processed for an administrative involuntary separation or is referred to a court-martial for misconduct, the medical evaluation is suspended.  The Medical Evaluation Board case remains in suspense pending the outcome of the misconduct proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical process is stopped and the board report is filed in the member’s medical record.  

6.  A careful review of the applicant’s service record does not reveal any evidence of arbitrary or capricious actions by the applicant’s command.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.   

7.  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.

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:   5 April 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: NA	
Change Reason to:	NA
Change RE Code to: NA	
Grade Restoration to: NA	
Change Authority for Separation:	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 20130000753

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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