IN THE CASE OF:  	Mr. 

      BOARD DATE:  	24 July 2013

      CASE NUMBER:  	AR20130000897
___________________________________________________________________________

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.  The applicant also requests to have the Chapter 14-12c over-turned and the date of correction be updated on the DD214.  In addition, he would like to be placed on retirement with an honorable discharged and insurance for his family for the 180 days.  

2.  The applicant states, in effect, the discharge was unjust because the AR 15-6 investigation does show any one could have hooked up the ipod to the SIPR computer, the administrative separation board did not use the findings from the AR 15-6 investigation, and his attorney at the time did an Article 138 for redress due to wrongs. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 January 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			16 October 2012
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 14-12c, 						JKQ, RE-3        
e. Unit of assignment:			Headquarters, 3d Battalion, 8th Cavalry Regiment, 
f. 					3 Brigade Combat Team, 1st Cavalry Division, Fort 						Hood, TX
g. Enlistment Date/Term:		18 July 2007, 3 years, the record is void of another 						reenlistment or extension of enlistment
h. Current Enlistment Service:	5 years, 2 months, 29 days
i. Total Service:			16 years, 5 months, 19 days
j. Time Lost:				None
k. Previous Discharges:		RA (930317-930528), UNC									RA (951229-990122), HD 										RA (991007-021006), HD
l. 					RA (021007-070101), HD
m. Highest Grade Achieved:		E-5
n. Military Occupational Specialty:	25U20, Signal Support Specialist
o. GT Score:				102
p. Education:				GED
q. Overseas Service:			SWA, Germany
r. Combat Service:			Iraq (081130-091031)
s. Decorations/Awards:		ARCOM, AAM-4, AGCM-4, NDSM-2, ICM-w/CS-2, 						GWOTEM, GWOTSM, NPDR, ASR, OSR-3, VUA, 				`		MUC
t. Administrative Separation Board: 	Yes
u. Performance Ratings:		Yes
v. Counseling Statements:		No	
w. Prior Board Review:			No


SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 17 March 1993 and reenlisted on at least four different occasions.  He was 35 years old at the time of his last reenlistment and had a high school equivalency (GED).  His record contains several awards including an ARCOM, AAM-4, AGCM-4, and a NPDR.  He served a combat tour in Iraq between November 2008 and October 2009.  When his discharge proceedings were initiated, he was serving at Fort Hood, TX.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army; however the applicant provided a copy of the separation packet minus the election of rights memorandum.  The record shows that on 
8 March 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.  failing to obey a lawful general regulation by wrongfully plugging his personal USB device into a Government SIPR computer (101106).

	b.  twice failing to report to his appointed place of duty (110211 and 110215).

2.  Based on documents provided by the applicant (the above misconduct), the unit commander recommended an honorable discharge and advised the applicant of his rights.  

3.  The record is void of the election of rights memorandum; 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.  

4.  The record shows the applicant appeared before an administrative separation board on 
23 May 2011.  The board recommended the applicant be separated from the Army under Army Regulation 635-200, paragraph 14-12c, for the commission of a serious offense and that the Soldier’s separation be characterized as General, Under Honorable Conditions. 

5.  The applicant’s record does contain the separation authority memorandum, dated 11 June 2012.  The separation authority stated, in effect, he carefully considered the separation packet, the Medical Evaluation Board Proceedings, and recommendations from the applicant’s chain of command.  Based upon his review, he determined that the Soldier’s medical condition is not a direct or substantial contributing cause of the conduct displayed.  Other circumstances do not warrant disability processing.  The separation authority directed the applicant’s discharge with a characterization of service of general, under honorable conditions.



6.  The applicant was discharged on 16 October 2012, for misconduct (serious offense), under the provisions of AR 635-200, paragraph 14-12c, with an SPD code of JKQ and a reentry code of 3.

7.  The applicant’s record does not contain any evidence of time lost. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

There are no counseling statements or UCMJ actions in the record.  

EVIDENCE SUBMITTED BY THE APPLICANT 

DD Form 149; DD Form 214; a copy of a Congressional Inquiry, a copy of the administrative separation board proceedings; 14 pages; a copy of the case separation packet, six pages; and a copy of the AR 15-6 and allied documents, 34 pages.

POST-SERVICE ACTIVITY: 

No stated 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 service record, the document and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The available record and documents provided by the applicant 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.  It brought discredit on the Army, and was prejudicial to good order and discipline.  By failing to obey a lawful general regulation by wrongfully plugging his personal USB device into a Government SIPR computer and twice failing to report to his appointed place of duty, the applicant diminished the quality of his service below that meriting an honorable discharge.  

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 the discharge was unjust because the AR 15-6 investigation does show any one could have hooked up the ipod to the SIPR computer, the administrative separation board did not use the findings from the AR 15-6 investigation, and his attorney at the time did an Article 138 for redress due to wrongs.  All of the applicant’s contentions were considered and the following were determined:

	a.  The administrative separation board is not required to used the findings from the AR 15-6 investigation.  The AR 15-6 is a separate and independent action from the administrative separation board.  

	b.  The applicant contends the discharge was unjust.  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 this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharge or wrongly accused.  The applicant’s statements alone do 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. 

5.  The applicant also requests to have the Chapter 14-12c over-turned and the date of correction be updated on the DD214.  In addition, he would like to be placed on retirement with an honorable discharged and insurance for his family for the 180 days.  The applicant’s issues are not within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization

6.  In addition, the available record or the documents presented by the applicant does not indicate 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.   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:  Record review              Date:  24 July 2013        Location: Washington, DC

Did the Applicant Testify?   NA

Counsel:  None

Witnesses/Observers: NA

Board Vote:
Character  	Change:  3	No Change:  2
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:	Honorable
Change Reason to:			No Change
Change RE Code to:		NA
Grade Restoration to:		NA
Change Authority for Separation:	NA
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)		AR20130000897



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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