IN THE CASE OF:  	Mr. 

BOARD DATE:  	29 May 2013

CASE NUMBER:  	AR20130001413
___________________________________________________________________________

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 characterization from under other than honorable conditions to general, under honorable conditions.

2.  The applicant states, in effect, that he requests the following error or injustice in the record be corrected:  His unit authorized him to drive a civilian government vehicle, and a female Soldier asked to accompany him to drop off personal laundry at the PX.  At the laundry shop, while parked, SFC T approached the vehicle and remarked that the applicant had a headphone with an ear piece in one ear, and that he had taken a turn at a high rate of speed than authorized, above the five MPH zone. This incident occurred in Afghanistan before deploying to Germany.  He believes the record to be in error or unjust because SFC T failed to go through the proper chain of command, as he went straight to the battalion commander to file a complaint and not through the applicant’s first sergeant or company commander.  He questions why there is a chain of command.  He argues that SFC T complained and lied about his ear piece, when in fact he used it only while parked and not driving.  He further refutes that he did not do “donuts” in a traffic circle (a 180-degree turn-around).  PFC B, the female Soldier, is his only witness to the incident.  He also had a JAG attorney assigned, but failed to appear on his behalf in reference to the matter.  Further, on 28 January 2012, he was pulled over by a German Police Officer and was turned over to the military police and his company commander; however, no action was taken regarding the incident.  He believes he and wife suffered a great deal and wished his records be corrected and that he receives a general, under honorable conditions characterization of service.
 
DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	14 January 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	7 December 2012
	d.	Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Paragraph 14-
			12b, JKA, RE-3
	e.	Unit of assignment:	Forward Support Company, 54th Engineer Battalion, 
			16th Sustainment Brigade, 
	f.	Current Enlistment Date/Term:	22 April 2009, 6 years
	g.	Current Enlistment Service:	3 years, 7 months, 16 days
	h.	Total Service:	5 years, 7 months, 14 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (070424-090421) / HD
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	92W (Water Treatment Specialist)
	m.	GT Score:	99
	n.	Education:	HS Graduate
	o.	Overseas Service:	Germany, SWA
	p.	Combat Service:	Afghanistan (101119-111115), Iraq (080522-090701)
	q.	Decorations/Awards:	ARCOM; AGCM; NDSM; ACM-2CS; ICM-2CS; 				GWOTSM; ASR; OSR-3; NATO MDL; CAB-2; 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 April 2007 and reenlisted on 22 April 2009, for a period of 6 years.  He was 20 years old at the time of entry and a high school graduate.  He served in Germany, Iraq, and Afghanistan.  He earned an ARCOM and completed 5 years, 7 months, and 14 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 25 October 2012, 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 for the following offenses:

	a.	for physically controlling a vehicle while drunk x 3 (120128, 120317, 120705); 
	b.	failing to obey a lawful general regulation by wrongfully operating a POV without a U.S. Forces certificate of license x 2 (120317, 120705); 
	c.	as the driver of the vehicle involved, wrongfully leaving the scene of an accident without making his identity known (120128);
	d.	 being drunk and disorderly (120705);
	e.	recklessly damaging four guard posts by hitting the posts with a vehicle, damage being in the sum of less than $500, property of the city of Bamberg (120128); and
	f.	recklessly damaging a passenger vehicle by hitting guard posts, property of a manufacturing firm (120128).

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

3.  On 31 October 2012, 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 and submitted 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 of the separation with an under other than honorable conditions discharge.  

4.  On 16 November 2012, the separation authority approved the unconditional waiver request, waived further rehabilitation, and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

5.  The applicant was discharged from the Army on 7 December 2012, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for pattern of misconduct, 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 27 August 2011, disobeying a lawful general regulation x 2 by wearing earphones while operating a military vehicle and operating a military vehicle in unsafe manner by violating local speed limits (110815).  The punishment consisted of reduction to the grade of E-1, forfeiture of $733 per month for two months, 45 days of extra duty, (FG). 

2.  A negative counseling statement, dated 2 March 2012, informing intent to initiate involuntary separation due to constant misconduct, lack of discipline, and general disregard for Army policy and regulation.

3.  A General Officer Memorandum of Reprimand, dated 13 April 2012, for operating a motor vehicle on a public road while intoxicated, a second alcohol-related driving offense within two months.

4.  A General Officer Memorandum of Reprimand, dated 10 February 2012, for operating a motor vehicle while intoxicated and causing a traffic accident.

5.  A Record of Trial by Summary Court-Martial showing that the trial held on 17 September 2012, found the applicant guilty of the following charges and specifications:  Charge I, Article 111, UCMJ—specifications 1-3: physically controlled a vehicle while drunk (120128, 120317, 120705); Charge II, Article 92, UCMJ—specifications 1-2: failed to obey a lawful general regulation (020317, 120705); Charge III, Article 134, UCMJ—specifications 1, leaving scene of an accident (120128), specification 2, drunk and disorderly (120705); Charge IV, Article 128, UCMJ—specifications 1-2, dismissed; and Charge V, Article 109, UCMJ—specifications 1-2, recklessly damaged road guard posts (120128), recklessly damage a passenger vehicle (120128).  His punishment consisted of forfeiture of $994, hard labor without confinement for 30 days, and restriction for 30 days.

6.  A Record of Trial by Summary Court-Martial showing that the trial held on 15 April 2010, found the applicant guilty of all charges and specifications:  Charge I, Article 86, UCMJ—failed to go to his appointed place of duty at the prescribed time (100317); and Charge II, Article 134, UCMJ—incapacitated for proper performance of duties due to overindulgence of intoxicating liquor or drugs (100317).  His punishment consisted of forfeiture of $662 and restriction for 50 days.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided no additional evidence. 

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 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 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 instances of serious misconduct, the applicant diminished the quality of his service below that meriting a general or a fully honorable discharge.  The applicant’s record of service was marred by a field grade Article 15 for multiple violations of the Uniform Code of Military Justice, two General Officer Memoranda of reprimand, and two Summary Court-Martial convictions.

3.  The applicant contends the discharge was unjust because he refutes the incident that led to the administration of an Article 15 punishment.  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 discriminated.  In fact, the applicant’s Article 15, several incidents of operating vehicle while drunk as documented by imposition of GOMORs and summary courts-martial, and disregarding Army policies and regulations justify a pattern of misconduct.  Moreover, the rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.  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 and to change the narrative reason for his discharge.

4.  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.  

5.  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)		AR20130001413

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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