IN THE CASE OF:  	Mr. 

      BOARD DATE:  	29 July 2013

      CASE NUMBER:  	AR20130000914
___________________________________________________________________________

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 characterization from general, under honorable conditions to honorable.

2.  The applicant states, in effect, that he was unjustly discharged because his service was exceptional.  His first sergeant went out of his way to get him kicked out.  He was falsely accused of driving while intoxicated and given an Article 15 on a bogus charge.  He was supposed to be discharged medically but the process was stopped.  The unit deployed in 2003 and he was left back with the rear detachment.  Since the discharge, he has received bachelors’ degree and now works for the Veterans Administration.   

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		26 December 2012
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			23 May 2003
d. Reason/Authority/SPD/RE:		Misconduct, Chapter 14, paragraph 14-12b, 							JKA, RE-3
e. Unit of assignment:			C Battery, 2d Bn, 3d FA Rgt, Giessen, Germany
f. Current Enlistment Date/Term:	17 March 2000, 4 years
g. Current Enlistment Service:	3 years, 4 months, 3 days
h. Total Service:			3 years, 4 months, 3 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3	
l. Military Occupational Specialty:	13B10, Cannon Crewmember
m. GT Score:				110
n. Education:				HS graduate
o. Overseas Service:			Germany, Korea
p. Combat Service:			None
q. Decorations/Awards:		NDSM, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes	
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant's record shows he enlisted in the Regular Army on 17 March 2000, for a period of 4 years.  He was 18 years old at the time and a high school graduate.  When his discharge proceeding were initiated he was serving in Germany.  His record documents no acts of valor or significant achievement.  
SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 30 April 2003, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct; specifically for:

      a. receiving a Field Grade Article 15 (030415, which was the date the appeal was 	denied), for wrongfully operating a vehicle while drunk and driving on suspended license
      b. receiving a Company Grade Article 15 (020323), for violating restriction
      c. receiving a Summarized Article 15 for failing to obey orders
      d. failing to obey orders (between 011003-021008)

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 25 April 2003, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and indicated he would submit a statement on his behalf (NIF).  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 a general, under honorable conditions discharge.  

4.  On an undated memorandum, 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 23 May 2003, under Army Regulation 635-200, Chapter 14-12b, for a pattern of misconduct, with a general, under honorable conditions discharge, an SPD code of JKA and an RE code of 3.

6.  The applicant’s record does not show any time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Field Grade Article 15 issued on 8 April 2003, for violating a lawful general regulation by driving on suspended license and for driving while drunk (021229).  His punishment consisted of reduction to the grade of E-1, forfeiture of pay in the amount of $575.00 per month for 2 months, 45 days of extra duty and restriction.

2.  Company Grade Article 15 issued on 13 March 2002, for breaking restriction (020211).  His punishment consisted of reduction to the grade of E-2, forfeiture of pay in the amount of $289.00 (suspended), 14 days of extra duty and restriction.

3.  Summarized Article 15 issued on 7 February 2002, for disobeying a lawful order from an NCO (020117).  He was punished to 7 days of extra duty and restriction.

4.  Two MP Reports dated 30 December 2002.  The applicant was the subject of investigations related to driving while intoxicated and driving on a suspended license.

5.  Ten negative counseling statements dated between 13 November 2001 and 11 January 2003, for offenses related to failure to obey lawful orders, failure to be in the proper uniform, disorderly conduct, provoking speeches and gestures, simple assault, lack of motivation, unsatisfactory performance, driving while intoxicated, breaking restriction, and failure to obey an order or regulation.

EVIDENCE SUBMITTED BY THE APPLICANT: 

DD Form 214, copy of a driver’s license, and a self-authored statement.

POST-SERVICE ACTIVITY: 

The applicant states he has received a bachelor’s degree and now works for the Veterans Administration.

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 the issues submitted with the application, there are insufficient 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 misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant’s service was marred by 3 Articles 15 for multiple violations of the Uniform Code of Military Justice and numerous negative counseling statements.

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 contends that he was unjustly discharged because his service was exceptional.  The 1SG went out of his way to get him kicked out and he was falsely accused of driving while intoxicated and given an Article 15 on a bogus charge.  He was supposed to be discharged medically but the process was stopped.  Since the discharge, he has received a bachelors’ degree and now works for the Veterans Administration.  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.

5.  The applicant alleges the 1SG went out of his way to get him kicked out of the Army.  However, 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 Military Police Reports contained in the record confirm the applicant’s violations of driving while intoxicated with a suspended license.  The character of the applicant’s discharge is commensurate with his overall service record.  

6.  The applicant contends that medical issues contributed to his discharge from the Army.  However, the service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition.  The applicant’s DA Form 2808, Report of Medical Examination, shows him as qualified for service with a P3 profile.   Moreover, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  

7.  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 discriminated.  In fact, the applicant’s 3 Articles 15 and numerous negative counseling statements justify a pattern of misconduct.  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.   

8.  The applicant’s post-service accomplishments have been noted as outlined on the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears these accomplishments did not overcome the reason for discharge and characterization of service granted.

9.  The applicant had applied for a discharge upgrade; however, the case was returned without action because the DD Form 214 was illegible.

10.  Records show the proper discharge and separation authority procedures were followed in this case.

11.  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:  29 July 2013           Location: Washington, DC

Did the Applicant Testify?  NA

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:	None
Change Reason to:			None
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	UOTH - Under Other Than                           			               Honorable Conditions
ADRB Case Report and Directive (cont)		AR 20130000914

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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