IN THE CASE OF:  	

      BOARD DATE:  	8 May 2013

      CASE NUMBER:  	AR20130001109
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, and notwithstanding 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 general, under honorable conditions discharge to honorable. 

2.  The applicant states, in effect, that he was discharged on 17 May 2012. At the time he had served 3 years and 6 months and his ETS date was 17 August 2012.   He completed an 11 month deployment where he was awarded an ARCOM and an AAM.  On the same very day he was discharged he was supposed to start terminal leave.  He had saved up enough leave time to take the maximum amount.  He feels that he deserves an upgrade for the service he provided to his country and wants to continue his education in pursuit of becoming a physician’s assistant so that he can help his community and become a more productive member of society.  He also feels that he had completed his contract since the 3 months he had remaining he was set to be on terminal leave.  Additionally, he was only accused of the offense and not convicted, he completed all requested classes by the military, and this was the only time he ever got into any type of trouble.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		7 January 2013			
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			18 May 2012	
d. Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200     								Chapter 14-12c, JKQ, RE-3	
e. Unit of assignment:			Headquarters and Headquarters Company             						1st Battalion, 101st Aviation Regiment, Fort 							Campbell, KY			
f. Current Enlistment Date/Term:	18 November 2008, 4 years
g. Current Enlistment Service:	3 years, 6 months, 1 day
h. Total Service:			3 years, 6 months, 1 day
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	68W10, Health Care Specialist
m. GT Score:				124
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Afghanistan (100322 - 110227)
q. Decorations/Awards:		ARCOM, AAM, AGCM, NDSM, ACM-CS, GWOTSM							ASR, OSR, NATO MDL



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 18 November 2008 for a period of 4 years.  He was 21 years old at the time of entry and a high school graduate.  He served in Afghanistan, earned an ARCOM, an AAM, and an AGCM, and completed 3 years, 6 months, and 1 day of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 10 April 2012, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14, Paragraph 14-12c, Misconduct, Commission of a Serious Offense for violating the Implied Consent law of Tennessee by failing to submit to a blood draw for the purpose of determining alcohol content (110924).

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

3.  On 18 April 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not 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 7 May 2012, the separation authority approved and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 18 May 2012, under Army Regulation 635-200, Chapter 14-12c, with a general, under honorable conditions discharge, 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.  A negative counseling statement dated 27 September 2011, for drunken or reckless driving and a second counseling statement dated 4 April 2012, issued to inform the applicant of the repercussions of choosing an Out-of-Service debt before the packet could be completed by the finance office.
      
2.  A General Officer Memorandum of Reprimand dated 5 October 2011, for refusing to take a lawfully requested test to measure the alcohol content of his breath when there was reasonable belief that he was driving under the influence of alcohol.

3.  An MP Report dated 25 September 2011, that indicates the applicant was the subject of an 
investigation for driving under the influence. 

4.  A Clarksville Police Department Incident Report dated 24 September 2011, for driving under the influence. 

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided a DD Form 293, and a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant provided none.

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.  

2.  After examining the applicant’s record of service, his military records, and the issues submitted with the application, there are several mitigating factors to merit an upgrade of the applicant's discharge to honorable for the following reasons:  

	a. Length and quality of service:  The applicant served 3 years 6 moths and 1 day of a 4-year enlistment, thus the preponderance of his service was honorable; additionally, the continued to serve honorably for an additional 8 months after his incident of misbehavior

	b. The record confirms the applicant received an ARCOM, an AAM, and an AGCM.

	c. The applicant contends the incident which resulted in his discharge was an isolated, one-time event.  A review of the applicant’s available records confirms there are no other events of misbehavior contained in his military record.  Additionally, the applicant contends he was within three months of his discharge date, ETS, as reflected on his ERB and typically would have been on terminal leave.  

	d. The applicant contends he was only accused of the offense and not convicted,  the record indicates the applicant failed to consent to a blood draw for the purposes of determining alcohol content.  The record also, indicates the applicant admitted to drinking; and was then enrolled in ASAP and monitored throughout the process. The record shows that the applicant continued to serve honorably for an additional 8 months after his incident of misbehavior.       

3.  This recommendation is made after full consideration of all of the applicant’s faithful and honorable service, as well as the record of misconduct.  The evidence in this case supports a conclusion that the applicant’s characterization of service may now be too harsh and as a result inequitable. 

4.  In view of the foregoing, it appears the characterization of service is now inequitable and it is recommended the Board grant full relief in the form of an upgrade of the characterization of service to honorable.  However, the reason for the discharge was fully supported by the record and therefore, remains both proper and equitable.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review	  Date:   8 May 2013           Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

Witnesses/Observers: NA 

Board Vote:
Character Change:  2	No Change:  3
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:		No Change
Change Reason to:				No Change
Change Authority for Separation:		No Change
Change RE Code to:			No Change
Grade Restoration to:			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)		AR20130001109



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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