IN THE CASE OF:  	

      BOARD DATE:  	12 July 2013

      CASE NUMBER:  	AR20130002096
___________________________________________________________________________

Board Determination and Directed Action

1.  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 to be both proper and equitable and voted to deny relief.  

2.  Further, notwithstanding the propriety of the applicant's discharge, the Board noted certain administrative errors on the applicant's DD Form 214 and directed the following changes as approved by the separation authority:

a. block 25, separation authority changed to AR 635-200, paragraph 14-12c, 
b. block 26, separation code changed to JKQ, 
c. block 28, narrative reason for separation changed to Misconduct (Serious Offense).  





      
      
      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 is asking for an upgrade to honorable because the state of Louisiana dropped the charges of DUI.  He has completed ASAP classes, enrolled in school and volunteers his spare time to teach youths.  He would like to work with veterans.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		2 February 2013 
b. Discharge received:			General, under honorable conditions
c. Date of Discharge:			10 April 2012
d. Reason/Authority/SPD/RE:		Misconduct (Drug Abuse), AR 635-200, 14-12c(2) 						JKK, RE-3
e. Unit of assignment:			Delta Forward Support Company, 3rd Squadron, 89th 					Cavalry Regiment, 4th Brigade Combat, 10th 							Mountain Division (Light Infantry), Fort Polk, LA 
f. Current Enlistment Date/Term:  	1 October 2011, 3 years
g. Current Enlistment Service:  	0 years, 6 months, 9 days
h. Total Service:			5 years, 2 months, 5 days
i. Time Lost:				None
j. Previous Discharges:		RA (070206-110930) HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	88M10, Motor Transport Operator
m. GT Score:				114
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (071124-081228); Afghanistan (101102-111025)
q. Decorations/Awards:		ARCOM, AAM, NDSM, ACM-w/CS-2, ICM-wCS-2 						GWOTSM, NDSM, AGCM, GWOTSM, ASR, OSR-2 						CAB, VUA, NATO MDL 
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		None
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 6 February 2007, for a period of four years.  
and 18 weeks.  He reenlisted on 1 October 2011 for a period of three years and was 23 years old at the time.  The applicant served in Iraq and Afghanistan and earned an ARCOM, AGCM, AAM, NDSM, and a CAB. 
 

SEPARATION FACTS AND CIRCUMSTANCES

1.  The service record indicates that the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct-commission of a serious offense, specifically for Commission of a Serious Offense, driving a passenger vehicle while drunk.

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

3.  On 26 March 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action and indicated he would submit a statement on his behalf (NIF).  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 a general, under honorable conditions discharge.  

4.  On 1 April 2012, under Army Regulation 635-200, Chapter 14-12c, 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’s DD Form 214 shows he was discharged from the Army on 10 April 2012, for misconduct (drug abuse), under the provisions of Chapter 14-12c(2), with an SPD Code of JKK, and RE code of 3.

6.  The service record does not contain any evidence of time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  A counseling statement, dated 11 December 2011 for driving under the influence of alcohol.   

2.  There record contains a GOMOR, dated 14 December 2011, for driving under the influence of alcohol.

EVIDENCE SUBMITTED BY THE APPLICANT 

A DD Form 293 and a DD Form 214.  

POST-SERVICE ACTIVITY: 

The applicant states he is enrolled in school and volunteers his time to help the youth.

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 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 the 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 his service mitigated the misconduct or poor duty performance.  

4. The applicant contends he is requesting an upgrade to honorable because the state of Louisiana dropped the charges of DUI and he completed the ASAP classes.  However, the fact that the charges were downgraded or dismissed does not mean the applicant was “innocent” of the charges.  Furthermore, 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 discharge.  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.   

5.  The applicant has expressed that he is enrolled in school and is doing volunteer work.    However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  Further, 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.  In addition, 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.  

7.  The review of the applicant’s record also revealed that someone in the discharge process erroneously entered the reason for separation as misconduct (drug abuse).  The separation authority, notwithstanding the recommendations of the subordinate commanders approved the discharge under the provisions of AR 635-200, paragraph 14-12c, for misconduct (serious offense).  

8.  In view of the foregoing, the characterization of service being both proper and equitable, recommend the Board deny relief.  Further, it is recommended that block 25 be changed to read separation authority to AR 635-200, paragraph 14-12c, block 26, separation code to JKQ, and block 28, reason for separation to Misconduct (Serious Offense), as it was approved by the separation authority.  

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review	Date:  12 July 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:			Yes
Change Characterization to:		No Change
Change Reason to:				Misconduct (Serious Offense)
Change RE Code to:			No Change
Grade Restoration to:			NA
Change Authority for Separation:	AR 635-200, paragraph 14-12c with corresponding separation code of JKQ
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)		AR20130002096



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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