IN THE CASE OF:  	Mr. 

      BOARD DATE:  	26 June 2013

      CASE NUMBER:  	AR20130001576
___________________________________________________________________________

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 to upgrade his characterization of service from under other than honorable to general, under honorable conditions or fully honorable.

2.  The applicant states, in effect, that he believes by putting forth an effort, he deserves more of an honorable upgrade to succeed in the civilian world, and to support his wife and children with a better career.  He is unable to obtain a better career with the discharge he received.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	22 January 2013
	b.	Discharge Received:	Under Other than Honorable Conditions
	c.	Date of Discharge:	28 November 2011
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200, 
			Paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	2nd Battalion, 5th Cavalry Regiment (Rear) 
			(Provisional), 1st Brigade Combat Team (R) 
			(P), 1st Cavalry Division (R) (P), Fort Hood, TX
	f.	Current Enlistment Date/Term:	4 January 2007, 3 years, 16 weeks
	g.	Current Enlistment Service:	2 years, 5 months, 17 days
	h.	Total Service:	2 years, 5 months, 17 days
	i.	Time Lost:	Yes
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	11B 10 (Infantryman)
	m.	GT Score:	96
	n.	Education:	GED
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (070708-080116)
	q.	Decorations/Awards:	ARCOM; NDSM; ICM-CS; GWOTSM; ASR
	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 4 January 2007 for a period of 3 years and 16 weeks.  He was 20 years old at the time of entry and had a high school equivalency (GED).  He served a tour in Iraq.  He earned an ARCOM and completed 2 years, 5 months, and 17 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 11 October 2011, 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 being AWOL (080812-110120), being found drunk while on duty as 11B, Infantryman (110902).

2.  The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 14 October 2011, the applicant waived his right to consult with legal counsel, indicated he understood the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board, and did 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 of the separation with an under other than honorable conditions discharge.  

4.  On 7 November 2011, the separation authority approved the unconditional waiver request, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of an under other than honorable conditions discharge.

5.  The applicant was discharged from the Army on 28 November 2011, 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 code (SPD) of JKQ and an RE code of 3. 

6.  The applicant’s record of service indicates 891 days of time lost for being AWOL from 12 August 2008 until his return on 20 January 2011, upon being apprehended by civil authorities.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 17 October 2011, AWOL (080812-110120), drunk on duty (110902).  The punishment consisted of reduction to the grade of E-1, forfeiture of $733 per month for two months, 45 days of extra duty and restriction, (FG). 

2.  Two negative counseling statements: drunk on duty (110902); Chapter action (111012).

3.  A report of return of absentee, dated 14 January 2011, reflects that the applicant was apprehended by civil authorities on 13 January 2011.

4.  A Charge Sheet that preferred charges on 11 September 2008, reflects that applicant was charged with Article 85, UCMJ, desertion on 11 September 2008, and Article 86, UCMJ, AWOL on 12 August 2008 and remaining absent. 





EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided none.

POST-SERVICE ACTIVITY: 

The applicant stated 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 record of service, his military records, 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 being AWOL for an extended period and being drunk on duty, the applicant diminished the quality his service below that meriting a general or a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for violations of the Uniform Code of Military Justice and negative counseling statements.

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 that with the efforts he put forth, he deserves an honorable upgrade.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the serious incidents of misconduct or by the negative counseling statements and the documented action under Article 15 of the Uniform Code of Military Justice.

5.  The applicant has expressed his desire to have better job opportunities that will provide for his family and a successful career.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  Further, any 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.  Moreover, if the applicant believes that he is entitled to an upgrade of his discharge, because of mitigating circumstances that contributed to his misconduct, such as, stress at work and/or family issues at home caused him to be AWOL that led to his discharge.  While the applicant may believe his stress at home and work was the underlying cause of his misconduct, the record of evidence does not demonstrate that he sought relief from stress through his command or the numerous Army community services like the Chaplain, Army Community and Family Support Services, Community Counseling Center, and other medical resources available to all Soldiers.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  

7.  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.  

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:  26 June 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)		AR20130001576



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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