IN THE CASE OF:  	Mr. 

      BOARD DATE:  	7 June 2013

      CASE NUMBER:  	AR20130001339
___________________________________________________________________________

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 honorable.

2.  The applicant states, in effect, the Article 15s he received indicated only small isolated or minor offenses; he was forced to sign Article 15s for drug use without being tested.  He was intimidated into volunteering to leave the service.  He experienced racial discrimination that impaired his ability to serve.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		17 January 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			5 January 1999
d. Reason/Authority/SPD/RE Code:	Pattern of Misconduct , AR 635-200, 14-12b 							JKA, RE-3
e. Unit of assignment:			B Co, 4-31st Infantry Battalion, Fort Drum, NY 
f. Current Enlistment Date/Term:	3 June 1997, 3 years
g. Current Enlistment Service:	1 year, 7 months, 3 days
h. Total Service:			1 year, 7 months, 3 days				
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				109
n. Education:				GED Certificate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None		
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 3 June 1997, for a period 3 years.  He was 19 years old at the time of entry with a GED Certificate.  He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman.  He was serving at Fort Drum, NY, when his discharge was initiated.  The record does not contain any evidence of acts of valor or meritorious achievements and he did not serve in combat.


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 9 September 1998, 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 a pattern of misconduct for using marijuana on more than one occasion and displaying a pattern of misconduct.

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

3.  On 23 December 1998, the acting Staff Judge Advocate’s Memorandum indicated the applicant waived consideration of his case by an administrative separation board, contingent upon him receiving a characterization of service of no less favorable than general, under honorable conditions.  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 with an under other than honorable conditions discharge.  

4.  The separation authority disapproved the applicant’s conditional waiver request and referred the case to an administrative separation board.  The administrative separation board proceedings are not contained in the available records and government regularity prevails in the discharge process.  The evidence of record (Staff Judge Advocate’s Memorandum), indicated the administrative separation board convened on 18 December 1998 and recommended the applicant be separated with an under other than honorable conditions discharge.

5.  On 23 December 1998, the separation authority approved the findings and recommendations of the administrative separation board and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

6.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost or actions under the Uniformed Code of Military Justice (UCMJ).  

7.  The applicant was discharged from the Army on 5 January 1999, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, a Separation Program Designator code (SPD) of JKA and a RE code of 3.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The evidence of record does not contain any counseling statements.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293/ with a continuation of issues, two pages; DD Form 214; and Discharge Orders 364-1006.
POST-SERVICE ACTIVITY: 

The applicant did not provide any 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 record, the issues and 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 pattern of 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 the Article 15s he received indicated only small isolated or minor offenses; he was forced to sign Article 15s for drug use without being tested.  The applicant's contentions regarding his Article 15s were carefully considered.  However, there are no Article 15s available in the official record to make a determination upon the applicant's contentions as whether they have merit or not.  Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support the Article 15s were unjust or he was forced to sign them.

5.  Further, 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.  The applicant further contends he was intimidated into volunteering to leave the service.
The evidence of record shows that on 9 September 1998, 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 a pattern of misconduct.  He did not volunteer to leave the service, he was involuntarily discharged.

7.  The applicant also contends he experienced racial discrimination that impaired his ability to serve.  Although the applicant alleges that he was a victim of racial discrimination during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.

8.  Additionally, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  

9.  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:  7 June 2013         Location: Washington, DC

Did the Applicant Testify:  NA

Counsel:  NA

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)		AR20130001339



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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