IN THE CASE OF:  	Mr. 

      BOARD DATE:  	12 June 2013

      CASE NUMBER:  	AR20130001196
___________________________________________________________________________

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 general, under honorable conditions to honorable.  

2.  The applicant states, in effect, that his discharge was under prejudice due to the fact prior to his deployment he had been having anxiety/depression issues.  He contends his first sergeant used this against him thinking he was going to use his medical issue to avoid deployment.  The first sergeant and commander through Article 15 and other means had him separated.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		14 January 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			7 July 2011
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14, 						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			A Btry, 1st Bn, 82d FA, Fort Hood, TX
f. Current Enlistment Date/Term:	24 January 2007, 5 years
g. Current Enlistment Service:	4 years, 5 months, 14 days
h. Total Service:			4 years, 5 months, 14 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	13B10, Cannon Crewmember
m. GT Score:				96
n. Education:				HS graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (090201-100201)
q. Decorations/Awards:		ARCOM, AGCM, NDSM, ICM-w/CS, GWOTSM, ASR, 					OSR, MUC
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 January 2007, for a period of 5 years.  He was 21 years old at the time of entry and a high school graduate.  He served in Iraq.  He earned an ARCOM and AGCM, and completed 4 years, 5 months, and 14 days of active duty service.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 15 June 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct.  Specifically for the following offenses: 

a. failure to go at the time prescribed to his appointed place of duty (101101)
b. making a false official statement to a noncommissioned officer (101119)
c. failure to go at the time prescribed to his appointed place of duty (101214)
d. failure to pay his home rent (110401)
e. failure to pay his garbage fee debt (110401)
f. failure to pay his water debt (110501)

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

3.  On 15 June 2011, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board, for which he was not entitled to, 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.  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 7 July 2011, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for pattern of misconduct,  with a Separation Program Designator code (SPD) of JKA 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 2 March 2011, for failure to go at the time prescribed to his appointed place of duty (101101).  The punishment consisted of reduction to the grade of E-3, forfeiture of $975.00 pay per month for two months (suspended), extra duty for 45 days, and restriction for 45 days (FG).  The document makes reference to a continuation sheet; however a continuation sheet was not found in the available record.



2.  Article 15, dated 15 June 2011, for failure to pay a debt in the amount of $370.00 and another debt in the amount of $195.00 (110401).  The punishment consisted of reduction to the grade of E-1, forfeiture of $733.00 pay per month for two months (suspended), extra duty for 45 days, and restriction for 45 days (FG).

3.  Eight negative counseling statements dated between 4 August 2010 and 3 May 2011, concerning issues relating to lying to a commissioned officer, missing an appointment, and failing to be at his appointed place of duty.
      
4.  Report of Mental Status Evaluation, dated 9 June 2011, which diagnosed the applicant with an adjustment disorder with anxiety and depressed mood.  The Behavioral Health Officer/LICSW determined the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in any administrate (or judicial) action deemed appropriate by his command.

EVIDENCE SUBMITTED BY THE APPLICANT:

None provided with the application.

POST-SERVICE ACTIVITY: 

None provided with the application.

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 and the issues submitted with the application, there are insufficient 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 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 two Article 15s for multiple violations of the Uniform Code of Military Justice and several 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 his chain of command used his medical condition of being diagnosed with having anxiety/depression issues as the means for separating him.  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 issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was separated as a result of his medical condition.  In fact, the applicant’s two Articles 15 and numerous negative counseling statements justify a pattern of misconduct.  The applicant’s statement alone does 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. 

5.  Furthermore, 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.

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:  12 June 2013       Location: Washington, DC

Did the Applicant Testify?  NA 

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:	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)		AR20130001196



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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