IN THE CASE OF:  	Mr. 

      BOARD DATE:  	12 July 2013

      CASE NUMBER:  	AR20130002687
___________________________________________________________________________

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 his general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, at the time of the incident he was simply trying to go home to be with his family.  His brother started using drugs and committing crimes that eventually lead to his murder a month after he was discharged.  His wife was raising their child by herself and was struggling to do so given the fact that she was pregnant with their second child.  He tried to tell his superiors but to no avail.  He believes the discharge was inequitable due to the fact that it was based off of one incident during a few months on a post.  He served the Army and his country very well during his first tour of duty as well as a combat tour to receive an honorable discharge during that time.  He does not deny the severity of his actions but he does believe he was right in leaving to be with his family.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			6 February 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				1 December 2009
d. Reason/Authority/SPD/RE Code:		Misconduct (Serious Offense), AR 635-200, 
Chapter 14-12c, JKQ, RE-3
e. Unit of assignment:				C Company, 2nd Bn, 34th Armor Regiment,
1st Heavy Brigade Combat Team, 1st Infantry Division, Fort Riley, KS
f. Current Enlistment Date/Term:		15 February 2008, 5 years
g. Current Enlistment Service:		1 year, 9 months, 17 days
h. Total Service:				5 years, 0 months, 14 days
i. Time Lost:					13 days
j. Previous Discharges:			USAR 041104-050525/NA
RA      050526-080214/HD
k. Highest Grade Achieved:			E-5
l. Military Occupational Specialty:		19K10, R4 M1 Armor Crewman
m. GT Score:					97
n. Education:					HS Graduate
o. Overseas Service:				Southwest Asia
p. Combat Service:				Iraq (071208-090228)
q. Decorations/Awards:			AAM, AGCM, NDSM, GWOTSM, ICM-CS, 
ASR, OSR x 2
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 Army Reserve on 4 November 2004, entered the Regular Army on 26 May 2005, and reenlisted on 15 February 2008, for a period of 5 years.  He was 20 years old at the time of entry and a high school graduate.  He served in Iraq; earned an AAM and an AGCM and completed 1 year, 9 months, and 17 days of active duty service during the period of service under review.  He had a total of 5 years, and 14 days which includes his inactive service in the US Army Reserve.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 24 November 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Army Regulation 635-200, specifically for:

	a. being absent without leave from 8 October 2009 until 21 October 2009 
      
	b. falsely signing a sick call slip, DA Form 689  

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

3.  On 24 November 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board although he was not entitled to a board, and did not submit 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 30 November 2009, the separation authority approved the separation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  On 1 December 2009, the applicant was separated under the provisions of Army Regulation 635-200, Chapter 14-12c, for misconduct (serious offense), with a characterization of service of general, under honorable conditions.  The DD Form 214 also shows a Separation Program Designator (SPD) code of JKQ and a reentry (RE) code of 3.   

6.  The applicant's record shows he was absent without leave (AWOL) during the period 8 October 2009 through 20 October 2009, for a total of 13 days.  He returned to his unit.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 3 November 2009, AWOL (091008-091021), signed an official record DA Form 689, which was totally false (091007).  The punishment consisted of reduction to the grade of E-4/SPC, forfeiture of $1,064.00 pay per month for two months (suspended), 45 days of extra duty and restriction (FG) 

2.  Two counseling statements dated between 8 October 2009 and 17 November 2009, for event-oriented counseling and involuntarily administrative separation.
      
3.  Two sworn statements dated 21 October 2009 and 7 October 2009, in reference to the applicant going on sick call and eventually went AWOL.

EVIDENCE SUBMITTED BY THE APPLICANT:

 The applicant provided none for the board’s consideration.

POST-SERVICE ACTIVITY: 

The applicant provided none for the board’s consideration.  

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 misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Article 15 for multiple violations of the Uniform Code of Military Justice.

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 his brother started using drugs and committing crimes that eventually lead to his murder a month after he was discharged.  His wife was raising their child by herself and was struggling to do so given the fact that she was pregnant with their second child.  While the applicant may believe his family issues and marital problems at home was the underlying cause of his misconduct, the record of evidence does not demonstrate that he sought relief from his problems 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.  

5.  Furthermore, 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.  

6.  The applicant further contends he served his country well and believes the discharge was inequitable because it was based on one incident.  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. 

7.  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.  

8.  The records show the proper discharge and separation authority procedures were followed in this case.  

9.  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:  12 July 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)		AR20130002687



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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