IN THE CASE OF:  	

      BOARD DATE:  	26 June 2013

      CASE NUMBER:  	AR20130003293
___________________________________________________________________________

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 to be 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, he was discharged due to problems he was having at home and with the courts in the State of Kansas.  He regrets the decision he made by driving under the influence but denies any domestic battery or criminal threats.  He feels it is unfair that he was punished twice for the same mistake.  He had good service for over 7 years and would like his discharge documents to reflect his good service.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		11 February 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			29 December 1999
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, 14-12c, JKQ, RE-3        
e. Unit of assignment:			B Btry, 1st Bn, 5th FA Regiment, Fort Riley, KS
f. Enlistment Date/Term:		12 October 1995, 5 years
g. Current Enlistment Service:	4 years, 2 months, 17 days
h. Total Service:			7 years, 11 months, 29 days
i. Time Lost:				None
j. Previous Discharges:		RA (930423-951011), HD										IADT (920311-920519), UNC (concurrent service)						USAR (920110-930422), NIF
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	13B10, Cannon Crewmember
m. GT Score:				105
n. Education:				GED
o. Overseas Service:			Korea
p. Combat Service:			None
q. Decorations/Awards:		AAM-3, AGCM-2, NDSM, ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		No	
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
After serving in the US Army Reserve, the applicant enlisted in the Regular Army in April 1993.  On 12 October 1995, he reenlisted for a period of 5 years.  He was 24 years old at the time and had a high school equivalency (GED).  His record indicates he received several awards including 3 AAMs and 2 AGCMs.

SEPARATION FACTS AND CIRCUMSTANCES: 

1.  The evidence of record shows that on 5 November 1999, 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 serious offenses; specifically for:

      a. Arrested by civilian police for driving under the influence, 
      b. Felony criminal threat,
      c. Transporting an open container,
      d. Violation of a protection order
      e. Arrested for domestic battery and resisting arrest
      
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 16 November 1999, the applicant waived legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to appear before an administrative separation 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 3 December 1999, 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 on 29 December 1999, for misconduct, under the provisions of AR 635-200, paragraph 14-12c, with an SPD code of JKQ and a reentry code of 3.

6.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  Company Grade Article 15, issued on 18 October 1999, for failure to report to his designated place of duty twice (990917, 990823).  His punishment consisted of reduction to   E-3 (suspended), forfeiture of pay in the amount of $279.00 (suspended), 14 days of extra duty and restriction.

2.  A General Officer Memorandum of Reprimand issued on 18 May 1999, for driving under the influence.

EVIDENCE SUBMITTED BY THE APPLICANT 

A battery commander’s memorandum, dated 18 November 1999, and an email dated 6 May 1999.

POST-SERVICE ACTIVITY: 

None provided 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 service record, 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 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 incidents 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 a Company Grade Article 15, General Officer of Reprimand, and his arrest by civilian police for multiple offenses.

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 punished twice for the same offense.  Once by the civilian court, and again by the discharge he received.  However, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. 

5.  The applicant states that he had good service for over seven and a half years and would like this reflected in his discharge documents.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceedings 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 repeated incidents of serious misconduct and the documented action under Article 15 of the Uniform Code of Military Justice.

6.  The applicant also contends he was having family issues at home that may have contributed to his misconduct.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  

7.  The 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: 	26 June 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 RE Code to:			No Change
Grade Restoration to:			NA
Change Authority for Separation:		No Change
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	UOTH - Under Other Than                           			               Honorable Conditions
ADRB Case Report and Directive (cont)		AR20130003293

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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