IN THE CASE OF:  	Mr. 

      BOARD DATE:  	31 July 2013

      CASE NUMBER:  	AR20130003115
___________________________________________________________________________

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, he was a good Soldier and had only one incident on 24 December 2009 for drinking and driving.  To his knowledge there was no reading on the breathalyzer.  He was not drinking.  He submitted to all sobriety tests.  He is being denied his educational benefits, because of the injustice.  

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	14 February 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	31 March 2010
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200 
			Paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	U.S. Army Dental Activity-Alaska, Fort Wainwright, AK
	f.	Current Enlistment Date/Term:	11 September 2008, 4 years
	g.	Current Enlistment Service:	1 year, 6 months, 20 days
	h.	Total Service:	1 year, 6 months, 20 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	68E10, Dental Specialist
	m.	GT Score:	109
	n.	Education:	GED
	o.	Overseas Service:	Alaska
	p.	Combat Service:	None
	q.	Decorations/Awards:	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 enlisted in the Regular Army on 11 September 2008, for a period of 4 years.  He was 21 years old at the time of entry and had a high school equivalency (GED).  He was trained in and awarded military occupational specialty (MOS) 68E10, Dental Specialist.  His record documents no acts of valor or significant achievement.  He completed 1 year, 6 months, and 20 days of active duty service.


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 25 February 2010, 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 having been arrested by a department of emergency services for driving under the influence of alcohol, which resulted in damages to a vehicle owned by Duyon Security Services.  

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

3.  On 26 February 2010, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted 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 17 March 2010, 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 31 March 2010, 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 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.  Sixteen negative counseling statements dated between 1 September 2009 and 28 December 2009, for driving under the influence (DUI), showing up to work late, substandard performance, failing to follow instructions, missing formations, disobeying orders, failing APFT, driving without a licensed passenger, and lying to an NCO.

2.  A memorandum for record, dated 4 January 2010, subject: Chestnut, Kristoffer N., pattern of conduct, which lists the timeline and summary of incidents involving the applicant, rendered by MSG V, a senior dental NCO.

3.  An MP Report dated 24 December 2009 , that indicates the applicant was the subject of an investigation for being involved in a traffic accident resulting in damage to property and private property.

4.  Two DD Form 2708 (Receipt for inmate or detained person), dated 24 December 2009 and 3 January 2010, that indicates the applicant was detained for traffic accident with damage to private property and DUI, and failing to obey order by driving while post driving privileges were suspended, respectively.  

5.  Two e-mail correspondences:  First, dated 20 October 2009, subject: monitoring staff performance, that instructs the applicant’s NCO to effectively monitor and ensure the applicant is actively engaged in his duties, rendered by LTC S, OIC of the dental clinic; and second, dated 16 September 2009, notes the applicant’s performance for the record provided by LTC S.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant did not provide additional evidence.  

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 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 the serious misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by numerous 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 the discharge was unjust, because he was a good Soldier and had only one incident for drinking and driving, but he was not drinking as he submitted to all sobriety tests, and because of the injustice, he is denied his educational benefits.  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 may have been unjustly discharged.  In fact, the applicant’s numerous negative counseling statements justify a pattern of misconduct, and a serious incident of drinking and driving.  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.  Moreover, the applicant contends the incident that caused his discharge was the only one in his entire Army career.  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 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.  

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:  31 July 2013      Location:  Washington, DC

Did the Applicant Testify?  NA 

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:	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)		AR20130003115



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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