IN THE CASE OF:  	

      BOARD DATE:  	26 June 2013

      CASE NUMBER:  	AR20130001231
___________________________________________________________________________

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 he would like to get his discharge upgraded.  He feels his discharge was given unjustly, after he committed a serious offense.  He is deeply sorry for his actions; however, when he returned to his unit, he was treated like a prisoner.  He was made to sleep at the Battalion HQ’s for months until he was discharged.  He was not even afforded the right to his own privacy.  It has been four years since he was discharged.  He has two children and upgrading this discharge would make him eligible for education benefits and he would be able to provide a better life for his family.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		10 January 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			27 May 2008
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 14-12c 						JKQ, RE-3        
e. Unit of assignment:			B Company, 188th Brigade Support Battalion, Fort 						Bragg, NC.
f. Enlistment Date/Term:		3 February 2005, 4 years 
g. Current Enlistment Service:	3 years, 2 months, 13 days
h. Total Service:			3 years, 2 months, 13 days
i. Time Lost:				43 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	44B10, Metal Worker
m. GT Score:				100
n. Education:				GED
o. Overseas Service:			SWA
p. Combat Service:			Iraq (060118-070117)
q. Decorations/Awards:		ARCOM, AAM, NDSM, ICM-w/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 30 December 2008.  He was 20 years old at the time of entry and had a high school equivalency (GED).  He was serving at Fort Bragg, NC when his discharge was initiated.  He was awarded an ARCOM and AAM.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  The record shows that on 2 May 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), specifically for:

	a.  Driving while under the influence of alcohol and AWOL twice. 
	b.  Receiving a Company Grade Article 15 for being drunk on duty. 
	c.  Receiving a vacation of suspension for breaking restriction.

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

3.  On 2 May 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived his rights to administrative separation board even though he was not entitled to one, and indicated he would not submit a statement on his 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 2008, the separation authority and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

5.  The applicant was discharged on 27 May 2008, for misconduct (serious offense), under the provisions of Chapter 14-12c, with an SPD code of JKQ and a RE code of 3.

6.  The applicant’s record contains two periods of unauthorized absences or time lost (071220-080127 and 080326-080329) for a total of 43 days.  The mode of return is unknown for the first AWOL; however, he was apprehended for the second AWOL.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  Company Grade (CG) Article 15 imposed on 13 December 2007, for being found drunk on duty (071101) and failing to go to his appointed place of duty at the prescribed time on four occasions (070827, 070927, 071005, and 071011).  His punishment consisted of reduction to the grade of E-2, forfeiture of pay in the amount of $340.00, suspended, and 14 days extra duty and restriction.  

2.  On 3 January 2008, the applicant’s vacation of suspended sentence; forfeiture of 340.00 pay for one month was vacated based on the applicant’s offense; breaking restriction (071217).

3.  A Military Police Report dated 30 December 2008, showing the applicant was arrested for larceny.

4.  One negative counseling dated 18 March 2008, for failing to go to his appointed place of duty at the prescribed time.

EVIDENCE SUBMITTED BY THE APPLICANT 

An online DD Form 293 application and a DD Form 214.

POST-SERVICE ACTIVITY: 

None listed by the applicant.

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 service 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 misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  

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 his discharge was given unjustly because when he returned to his unit, he was treated like a prisoner.  He was made to sleep at the Battalion HQ’s for months until he was discharged (not afforded the right to his own privacy).  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 unjustly treated.  The applicant’s statements alone do not 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.  The applicant has expressed his desire to have better job opportunities and the benefits of the GI Bill.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  Further, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

6.  By regulation, an under other than honorable conditions (UOTHC) discharge is normally appropriate for a member separated by reason of misconduct.  It appears the applicant’s generally good record of service was the basis for his receiving a general discharge instead of the normal UOTHC discharge.  His record was marred by an offense of larceny, a CG Article 15, a suspended sentence and AWOL.  In addition, 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.  

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:	 26 June 2013	Location: Washington, DC

Did the Applicant Testify?  No 

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 RE Code to:			No Change
Grade Restoration to:			NA
Change Authority for Separation:		No Change
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)		AR20130001231



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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