IN THE CASE OF:  	

      BOARD DATE:  	29 May 2013

      CASE NUMBER:  	AR20130002045
___________________________________________________________________________

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 was unjustly discharged.  He contends he was discharged for something he didn't do.  He was accused of stealing from another Soldier's bank account, that he had no access to, nor did he ever make any contact with that Soldier.  He was days from attending the Special Forces (SF) Course and would never have done anything to jeopardize his chances of getting his SF Tab.  He also contends he was an outstanding Soldier, who has attended many Army schools and was the CSM's and LTC's drivers at one point.  He is currently attending college to earn a degree in petroleum engineering and still has goals of one day returning to the Army and earning his SF tab, but he can't with his current characterization of service.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		22 January 2013
b. Discharge Received:		General, under honorable conditions 
c. Date of Discharge:			12 November 2009
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, Chapter 14-12b, JKA, RE-3
e. Unit of assignment:			HHC, 188th CS, BSB, Fort Bragg, NC
f. Current Enlistment Date/Term:	16 April 2009, 5 years
g. Current Enlistment Service:	6 months, 27 days 
h. Total Service:			3 years, 3 months, 9 days
i. Time Lost:				None
j. Previous Discharges:		USAR-060804-070725/NA										RA-070726-090415/HD
k. Highest Grade Achieved:		E-4	
l. Military Occupational Specialty:	92F1P, Petroleum Supply Specialist
m. GT Score:				NIF
n. Education:				GED
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		AAM, NDSM, 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's record shows he enlisted in the Regular Army on 26 July 2007 after serving    11 months and 22 days in the United States Army Reserves.  On 16 April 2009, he reenlisted for a period of 5 years; he was 21 years old at the time.  He was trained in and awarded military occupational specialty (MOS) 92F, Petroleum Supply Specialist.  He earned an AAM and completed 3 years, 3 months, and 9 days of total service.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 28 September 2009, 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.  Specifically for the following offenses:

a. stealing $125.00 from USAA Bank (090306)
b. FTR x 4 (090812, 090813, 090814, and 090901)

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

3.  On 30 September 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not a statement on his own 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 10 October 2009, 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 12 November 2009, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, with 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 24 July 2009, for stealing $125.00 from USAA Bank (090306).  The punishment consisted of reduction to the grade of E-3, forfeiture of $876.00 pay (suspended), extra duty for 45 days, and restriction for 45 days (FG).

2.  Record of Supplementary Action under Article 15, dated 27 August 2009, for the suspension of punishment for forfeiture of $876.00 pay was vacated for failure to go at the time prescribed to his appointed place of duty (090814).

3.  Four negative counseling statements dated between 14 August 2009 and 2 September 2009, for issues concerning reporting to extra duty and failing to report to his appointed place of duty.
      
EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided no additional documents.

POST-SERVICE ACTIVITY: 

None provide 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 the applicant’s record of service, his military records, the documents 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 pattern of misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by his Article 15 for multiple violations of the Uniform Code of Military Justice and several 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 he was unjustly discharge for something he didn't.  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 discharged.  The applicant’s statement alone does 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 also contends he was an outstanding Soldier.  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 incidents of misconduct or by the multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.

6.  The applicant desires to reenlist in the Army.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on AR 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  There are no basis upon which to grant a change to the reason or to the RE code.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 

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: 29 May 2013          Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

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:		No Change
Change RE Code to:			No Change
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)		AR20130002045



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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