IN THE CASE OF:  	Mr.

      BOARD DATE:  	29 May 2013

      CASE NUMBER:  	AR20130001150
___________________________________________________________________________

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 states, in effect, he was discharged with a good record with no Article 15 punishment.  Although he was charged in a civilian court system, he was told that if he did not get into any further trouble, the charges would be dismissed; however, he was already charged by the Army.  He was also promoted above his peers and graduated from the warrior leaders’ course (WLC) in the top 20 percent of his class.  He does not believe he was provided the opportunity to correct his mistake before he was discharged.  He was not given any extra duty or corrective training, which he feels he deserved given his prior track record.
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	14 January 2013
	b.	Discharge Received:	General, Under Honorable Condition
	c.	Date of Discharge:	25 August 2011
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Civil Conviction), AR 635-200, Chapter 
			14, Section II, JKB, RE-3
	e.	Unit of assignment:	B Co, 203rd BSB, 3HBCT, 3ID, Fort Benning, GA
	f.	Current Enlistment Date/Term:	3 June 2010, 3 years
	g.	Current Enlistment Service:	1 year, 2 months, 22 days
	h.	Total Service:	4 years, 1 month, 8 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (070718-100602) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	94F (Computer detection Systems Repairer)
	m.	GT Score:	101
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (080915-090914)
	q.	Decorations/Awards:	ARCOM; NDSM; ICM-CS; GWOTSM; NPDR; 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 enlisted in the Regular Army on 18 July 2007 and reenlisted on 3 June 2010 for a period of 3 years.  He was 20 years old at the time of entry and a high school graduate.  He served in Iraq.  He earned an ARCOM and completed 4 years, 1 month, and 8 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 18 July 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-5, AR 635-200, by reason of conviction by a civil court and receiving a sentence of one year confinement that was further suspended for two years on formal probation.

2.  The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 19 July 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions and submitted a statement on his behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The senior intermediate commanders reviewed the proposed action and recommended approval of the separation with a general, under honorable conditions discharge.  

4.  The separation authority’s decision memorandum that reflects having approved the conditional waiver request, waived further rehabilitation and directing the applicant’s discharge with a characterization of service of general, under honorable conditions is not available.  However, the DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, Section II, by reason of misconduct (civil conviction), with a characterization of service of general, under honorable conditions.  Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  The applicant was discharged from the Army on 25 August 2011, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-5, AR 635-200, for misconduct (civil conviction), a Separation Program Designator code (SPD) of JKB 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.  Two negative counseling statements, dated 22 June 2011 and 22 August 2011, for losing ID card and initiation of involuntary separation.

2.  A case action summary by a state unified judicial system, dated 13 June 2011, reflecting the actions, judgments, and case notes in the applicant’s case for being charged with a marijuana-2nd degree offense  
EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a copy of his promotion packet and two certificates of completing trainings.

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, 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 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.  The applicant, by violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in a Soldier.  The applicant, as a Soldier, had the duty to support and abide by the Army's drug policies.  By abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge.  The applicant’s record of service was marred by the civil court conviction.

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 that he had good service which included being considered for promotion above his peers and having completed the WLC in the upper 20 percent of the class.  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 serious incidents of misconduct and as documented actions by a civil court conviction.

5.  The applicant contends he was not provided the opportunity for corrective training.  However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose.  The command appropriately determined the applicant did not demonstrate the potential for further military service.

6.  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.  

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: 	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)		AR20130001150



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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