IN THE CASE OF:  	Mr.

      BOARD DATE:  	15 July 2013

      CASE NUMBER:  	AR20130000772
___________________________________________________________________________

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 considering the Discussion and Recommendation which follows, the Board determined the characterization of service was too harsh based on the overall length and quality of the applicant's service, to include his combat service, and the circumstances surrounding the discharge (i.e., his son's mental state), and as a result it is inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  The Board further determined the reason for discharge was both proper and equitable and voted not to change it.  This action entails restoration of grade to E-4/SPC.



      
      
      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 that his under other than honorable conditions discharge be upgraded to honorable or general, under honorable conditions.

2.  The applicant states, in effect, that he was unfairly treated and given the wrong discharge.  He contends he should have been discharged for not having a family care plan at the time.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		7 January 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			21 November 2006
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			4th BCT (R)(P), 4th IN Div (R)(P), Fort Hood, TX
f. Current Enlistment Date/Term:	9 November 2004, 4 years
g. Current Enlistment Service:	2 years, 12 days
h. Total Service:			4 years, 6 months, 20 days
i. Time Lost:				None
j. Previous Discharges:		RA-020502-041108/HD
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	92F10, Petroleum Supply Specialist
m. GT Score:				87
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (030331-040330)
q. Decorations/Awards:		NDSM, GWOTEM, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			Yes, 8 August 2012, Record Review
SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 2 May 2002, for a period of 3 years.  He reenlisted on 9 November 2004 for a period of 4 years.  He was 22 years old at the time of reenlistment and a high school graduate.  He served a tour of combat in Iraq and achieved the rank of SPC/E-4.  The record does not contain any evidence of acts of valor or meritorious achievements.  He completed 4 years, 6 months, and 20 days of total active duty service.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 27 October 2006 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 (serious offense), for disobeying an order from a commissioned officer to be at the battalion area with his bags packed and ready to deploy to Iraq at 0900 on 30 May 2006 when he missed his flight to Iraq.

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 30 October 2006, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally 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 commander reviewed the proposed action and recommended approval of the separation with an under other than honorable conditions discharge.  

4.  On 9 November 2006, the separation authority approved the applicant's unconditional waiver request and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

5.  The applicant was discharged from the Army on 21 November 2006, 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), with a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

6.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Seven negative counseling statements dated between 19 May 2006 and 26 September 2006, concerning issues about not meeting the requirements for a family care plan discharge, returning to Iraq, making false statements, failing to be at his appointed place of duty, deployment with his unit to Iraq on 30 May 2006, disobeying a lawful order from a commissioned officer, and being processed for separation under the provisions of AR 635-200, Chapter 14-12c.

2.  The record contains a DD Form 458, Charge Sheet, which shows the applicant was charged with missing movement (060530) and disobeying a lawful order from a commissioned officer (060530).




EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant submitted a DD Form 293, a copy of the prior Army Discharge Review Board's decision letter, and a copy of his DD Form 214 for the period of service under review. 

POST-SERVICE ACTIVITY: 

None were 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, the documents 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 or general, under honorable conditions discharge.  The applicant’s record of service was marred by his acts of misconduct and several negative counseling statements.  

3.  The applicant's contentions about unfair treatment, given the wrong discharge and that he should have been discharged for not having a family care plan were carefully considered.  However; there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention he was unfairly treated or wrongfully discharged.  The applicant’s statements alone does not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.   

4.  Furthermore, the development counseling form, dated 25 May 2006, indicates the applicant was given time to prove that he was the legal provider for his child to validate a family care plan.  The applicant failed to provide any evidence that he was the legal provider.  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.  

5.  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: Personnel 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 no additional documents or issues.

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

Board Vote:
Character Change:  4	No Change:  1
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:	General, Under Honorable Conditions
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
Grade Restoration to:		E-4/SPC
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	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20130000772



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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