IN THE CASE OF:  	Mr. 

      BOARD DATE:  	29 May 2013

      CASE NUMBER:  	AR20130001137
___________________________________________________________________________

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 to upgrade his characterization of service from general, under honorable conditions to fully honorable.

2.  The applicant did not present any additional issue.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	14 January 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	17 December 2003
	d.	Reason/Authority/SPD/RE Code:	Misconduct, AR 635-200, Paragraph 14-12c, JKQ, 
			RE-3
	e.	Unit of assignment:	C Co, 1st Bn, 15th IN, 3rd Bde, 3ID(M), Fort 
			Benning, GA
	f.	Current Enlistment Date/Term:	24 April 2002, 3 Years
	g.	Current Enlistment Service:	1 year, 7 months, 24 days
	h.	Total Service:	1 year, 7 months, 24 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	11B (Infantryman)
	m.	GT Score:	95
	n.	Education:	GED
	o.	Overseas Service:	NIF
	p.	Combat Service:	NIF
	q.	Decorations/Awards:	ASR
	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 24 April 2002 for a period of 3 years.  He was 19 years old at the time of entry and had a high school equivalency (GED).  He was trained in and awarded military occupational specialty (MOS) 11B, Infantryman.  His record documents no acts of valor or significant achievement and no overseas assignment.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 12 November 2003, 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 misconduct (serious offense) for disobeying a lawful order and dereliction of duty.  

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

3.  On 12 November 2003, the applicant waived consultation with legal counsel, indicated he understood the impact of the discharge action, waived consideration of his case by an administrative separation board contingent upon receiving a general or an honorable discharge (although not entitled to such a board), 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 24 November 2003, 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 from the Army on 17 December 2003, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct, 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.  Article 15, dated 22 September 2003, disobeying a lawful order from CSM H and 1SG H (030817), dereliction of duty (030817).  The punishment consisted of reduction to the grade of E-1, forfeiture of $575 per month for two months (suspended), 45 days of extra duty and restriction, (FG). 

2.  Four negative counseling statements dated between 27 August 2003 and 24 September 2003, for impending separation, disciplinary actions, and disobeying an order.

3.  A memorandum with case record, dated 1 May 2003, subject: Application for Conscientious Objector Status (CORB) reflects that the DACORB had determined the applicant did not present convincing evidence, IAW AR 600-43, that his stated CO beliefs warranted award of CO (1-O) status.

4.  The record also shows the applicant was reduced in rank from E-3 to E-2 on 24 April 2002.  However, the Article 15 is not contained in his record.




EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided copies of his preseparation counseling checklist, DA Form 2-1 with ERB, and separation orders with DD Form 214 for service under current review.

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.  However, after examining the applicant’s record of service, his military records, and the documents 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 discharge.  The applicant’s record of service was marred by an Article 15 for violations of the Uniform Code of Military Justice.

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.  Although the applicant did not provide any corroborating evidence, there is a presumption of regularity in the conduct of government 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 may have been unjustly discriminated.  If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof by providing any pertinent or sufficient evidence for the Board’s consideration.

5.  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.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

6.  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:  29 May 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:	No Change
Change Reason to:			No Change
Change Authority for Separation:	NA
Change RE Code to:		NA
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)		AR20130001137



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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