IN THE CASE OF:  	Mr. 

      BOARD DATE:  	8 May 2013

      CASE NUMBER:  	AR20130001158
___________________________________________________________________________

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 under other than honorable conditions to general, under honorable conditions or an honorable discharge.

2.  He states, in effect, that his discharge is not representative of his overall service from       21 September 1999 through 26 July 2006.  His discharge makes it almost impossible to find employment.  Prior to this incident he did not have a blemish on his military record.  He feels like he was pressured into the guilty plea by JAG representation. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		14 January 2013
b. Discharge Received:		Under Other Than Honorable Conditions 
c. Date of Discharge:			28 July 2006
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, Chapter 						14-12c, JKQ, RE-3
e. Unit of assignment:			B Co, 577th Engineer Bn, Fort Leonard Wood, MO
f. Current Enlistment Date/Term:	4 July 2003, 3 years
g. Current Enlistment Service:	3 years, 0 months, 25 days 
h. Total Service:			6 years, 10 months, 7 days
i. Lost time:				None
j. Previous Discharges:		RA-(990922-030703)/HD
k. Highest Grade Achieved:		E-5	
l. Military Occupational Specialty:	21J10, General Construction Equipment Repairer
m. GT Score:				106
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (030221-040220)
q. Decorations/Awards:		BS, AGCM, NDSM, GWOTEM, GWOTSM, NPDR, 						ASR, OSR
r. Administrative Separation Board: 	No, unconditionally waived
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant's record shows he enlisted in the Regular Army on 22 September 1999, for a period of 4 years.  He was 20 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 21J10, General Construction Equipment Repairer.  He reenlisted on 4 July 2003 for 3 years and 25 days and was 24 years old at the time.  He was serving at Fort Leonard Wood, MO, when his discharge was initiated.  He achieved the rank of SGT/E-5.  His record also shows that he served a combat tour and earned awards which included a BS and an AGCM.

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence contained in the applicant’s service record indicates that on 8 June 2006, 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 of misconduct-commission of a serious offense for his involvement with the incident that happened at Electra’s (050808), and his course of actions during the investigation that followed. 

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.

3.  The applicant’s election of rights is not contained in the available record and government regularity prevails in the discharge process.  However, on 27 January 2006, the applicant consulted with legal counsel, pending a court-martial, entered into a plea agreement and offered to accept a Field Grade Article 15 and not demand trial by court-martial.  As part of this offer, he also agreed to unconditionally waive any administrative separation board initiated as a result of these charges and to testify truthfully in any proceeding against any other person arising from the events surrounding these charges.  

4.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate and senior commanders reviewed the proposed action and recommended approval of an under other than honorable conditions discharge.  

5.  On 11 July 2006, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  The applicant was reduced to the lowest enlisted rank.

6.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  

7.  The applicant was discharged from the Army on 28 July 2006, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator (SPD) code of JKQ and an RE code of 3. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A Field Grade Article 15, dated 3 April 2006, for aggravated assault and damaging nonmilitary property, hindering the apprehension of SPC C and assisting him by hiding a knife used in the commission of said offenses (050808); conspired with SGT C to commit an offense under the Uniform Code of Military Justice, to wit obstruction of justice, SGT F and SGT C, created a false story to tell investigators (050808); fail to obey a lawful general regulation, by wrongfully socializing and drinking at a nightclub with lower enlisted Soldiers in his company under his authority (050808); wrongfully endeavored to impede an investigation in his case and that of  SGT C, tried to coordinate a false story to tell investigators that they had not socialized and drank with junior Soldiers (050808); and having knowledge that SPC C, committed serious offenses of aggravated assault and wrongfully damaged nonmilitary property, wrongfully concealed these serious offenses by hiding a knife used in the commission of said offenses (050808-050811); the punishment consisted of reduction to E-4, forfeiture of $1,009 pay x 1 month, extra duty for 15 days.

2.  The record contains three NCO Evaluation Reports covering the periods of June 2003 through March 2006.  The applicant was rated as fully capable on two of the NCOERs (June 2003 through May 2005) and he received a marginal rating on the third (June 2005 through March 2006).

3.  There is a negative counseling statement that was done on 27 March 2006, for his pending chapter proceedings.
 
EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided a DD Form 293, dated 9 January 2013.

POST-SERVICE ACTIVITY: 

The applicant did not provide any.

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 record 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 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 incidents of misconduct, the applicant diminished the quality of his service below that meriting a general, under honorable conditions or an honorable discharge.  

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 his discharge is not representative of his overall service from       21 September 1999 through 26 July 2006.  AR 635-200, paragraph-3-5(2), states the characterization of service will be determined solely by the military record during the current enlistment or period of service, plus any extension thereof, from which the Soldier is being separated.

5.  The applicant further contends his discharge makes it almost impossible to find employment.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

6.  The applicant also contends prior to this incident he did not have a blemish on his military record.      

7.  The applicant additionally contends that he was pressured into the guilty plea by JAG representation.  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.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was pressured to make a guilty plea.   

8.  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:  8 May 2013       Location:  Washington, DC

Did the Applicant Testify?  NA

Counsel: None

Witnesses/Observers: NA

Board Vote:
Character  	Change:  1	No Change:  4
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 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)		AR20130001158



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1