IN THE CASE OF:  	Mr. 

      BOARD DATE:  	21 June 2013

      CASE NUMBER:  	AR20130001967
___________________________________________________________________________

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 general, under honorable conditions to fully honorable.

2.  The applicant states, in effect, that he was discharged from active duty due to driving under the influence, but that the charge was later dropped in court that is confirmed in the attached letter from his attorney’s office.  He is a two-time (27-month) veteran of both Iraq and Afghanistan.  He would like his discharge reviewed and hopefully upgraded to represent his service of having served honorably for over six years with two combat deployments and never receiving any nonjudicial punishment until his discharge.  He feels he gave years of great and honorable service to his country and would simply like for it to be reflected on his DD Form 214 for prospective employers to see.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	28 January 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	13 October 2011
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), Paragraph 14-12c
			JKQ, RE-3
	e.	Unit of assignment:	A Co, 508th STB, 4th BCT, 82nd ABN DIV, Fort 
			Bragg, NC
	f.	Current Enlistment Date/Term:	17 October 2008, 4 years
	g.	Current Enlistment Service:	2 years, 11 months, 27 days
	h.	Total Service:	6 years, 1 month, 26 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (050818-081016) / HD
	k.	Highest Grade Achieved:	E-5
	l.	Military Occupational Specialty:	25U10, Signal Support System Specialist
	m.	GT Score:	117
	n.	Education:	GED
	o.	Overseas Service:	SWA
	p.	Combat Service:	Afghanistan (090818-100816), Iraq (060914-071120)
	q.	Decorations/Awards:	ARCOM-2; AAM; AGCM; NDSM; ACM-CS; ICM-CS 
			GWOTSM; NPDR; ASR; OSR-2; NATO MDL; MUC
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	Yes
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 18 August 2005, and reenlisted on 17 October 2008, for a period of 4 years.  He was 19 years old at the time of entry and had a high school equivalency (GED).  He served in Iraq and Afghanistan.  He earned two ARCOM awards and an AAM.  He completed 6 years, 1 month, and 26 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 27 June 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 misconduct (serious offense).  Specifically, for physically controlling a vehicle, to wit: a motorcycle, while drunk, in violation of Article 111, UCMJ (110529).  Note that the record further indicates the applicant acknowledged receipt of the foregoing notice from the commander on 23 June 2011.

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

3.  On 28 June 2011, the applicant responded by a U.S. Army Trial Defense Service letterhead memorandum, indicating he was given the opportunity to consult with legal counsel, understood that he was not entitled to an administrative separation board because either he had less than six years of active and reserve service and not being recommended for a UOTH discharge, and did not submit a statement on his own behalf.  (Note that the response did not indicate a signature or a provision for a servicing counsel’s signature, nor a specific waiver of his right to consult with legal counsel).  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 1 September 2011, 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 13 October 2011, with a characterization of service of general, under 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 a 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.  An Article 15, dated 14 June 2011, for physically controlling a motorcycle while drunk (110529).  The punishment consisted of reduction to the grade of E-4, forfeiture of $1,115 per month for two months (suspended), and 45 days of extra duty, (FG). 

2.  A General Officer Memorandum of Reprimand, dated 1 June 2011, for being arrested for speeding and a breathalyzer indicating he exceeded the authorized limit of blood alcohol content.

3.  A Serious Incident Report, dated 29 May 2011, that indicates the applicant was arrested for DUI and speeding.

4.  Three NCOERs covering the period 1 July 2008 through 30 September 2010, two as change of rater reports and one as an annual report, respectively.  The applicant was rated as “Among the Best” twice, and “Fully Capable,” and received 1/1 and 2/1 twice from the senior rater of each report, respectively.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a letter from an attorney’s office, dated 17 May 2012, indicating that on 11 April 2012, the charges for DWI, speeding, and fictitious tags were dismissed, signed by a legal assistant, absent any information on the reason for dismissal of charges. 

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 and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The record also confirms that when the unit commander notified the applicant of initiation of discharge proceedings on 27 June 2011, the applicant had completed a total of 5 years, 10 month and 10 days of active duty service from the day of his first enlistment in the Regular Army.  

3.  The record further confirms that the applicant’s discharge was appropriate, because the quality of his service was not consistent with the Army standards for acceptable conduct and performance of duty by military personnel.  The applicant, by violating the Army's policy not to abuse alcohol, compromised the special trust and confidence placed in an NCO.  The applicant, as an NCO, had the duty to support and abide by the Army's alcohol abuse policies.  By abusing alcohol, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge.  

4.  The applicant contends the charges against him were dismissed, but did not specify why the charges were dismissed.  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, General Officer Memorandum of Reprimand, and the serious incident report related to operating a vehicle under the influence of alcohol justify having committed a serious misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional or sufficient corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.  

5.  The applicant contends that he had good service which included serving two combat tours and serving over six years of honorable with no additional nonjudicial punishment.  The applicant’s service accomplishments and the quality of his service prior to the incident 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 acts of misconduct.  Moreover, although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.   

6. The applicant contends that an upgrade of his discharge will allow him to obtain better employment, or gain the prospective of an employer.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 

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, 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:  21 June 2013       Location:  Washington, DC

Did the Applicant Testify?  NA 

Counsel:  None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  3	No Change:  2
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	Honorable
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)		AR20130001967

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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