IN THE CASE OF:	

      BOARD DATE:  	16 October 2013

      CASE NUMBER:  	AR20130003790
___________________________________________________________________________

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 to upgrade his characterization of service from general, under honorable conditions to fully honorable.  

2.  The applicant states, in effect, he was discharged for an offense, “Operating Under the Influence,” which he was found not guilty of, but was found guilty of reckless driving, which is only a moving traffic violation.  The characterization of his discharge should be honorable, since he was not guilty of the charge he was discharged for.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		19 February 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			11 February 2013
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 14-12c 						JKQ, RE-3        
e. Unit of assignment:			Rear Detachment, 2nd Battalion
377th Parachute Field Artillery Regiment
4th Brigade Combat Team (Airborne), 25th Infantry Division, Joint Base Elmendorf-Richardson, AK
f. Enlistment Date/Term:		22 March 2011, 3 years, 18 weeks, 1 month extension 
g. Current Enlistment Service:	1 year, 10 months, 20 days
h. Total Service:			3 years, 11 month, 29 days
i. Time Lost:				None
j. Previous Discharges:		USAFR (090213-090616) / NA
					USAF (090616-100831) / HD 
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	13B1P, Cannon Crewmember
m. GT Score:				101
n. Education:				HS Graduate
o. Overseas Service:			Alaska
p. Combat Service:			None
q. Decorations/Awards:		AAM, NDSM, GWOTSM, ASR, USAFTR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		NIF
u. Prior Board Review:			No



SUMMARY OF SERVICE:  

The applicant served in the Air Force from 16 June 2009 until 31 August 2010, and was discharged with an honorable characterization of service.  He enlisted in the Regular Army on 22 March 2011, for a period of 3 years, 18 weeks and extended for 1 month on 8 March 2012, to meet the SRR for command sponsorship.  He was 20 years old at the time and a high school graduate.  When his discharge proceedings were initiated he was serving at Joint Base Elmendorf-Richardson, AK.   

SEPARATION FACTS AND CIRCUMSTANCES

1.  The record shows that on 27 August 2012, 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 (serious offense), specifically for wrongfully driving while under the influence of alcohol on or about 14 June 2012  

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 27 August 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; however, the statement is not in the available record.  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 September 2012, 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 11 February 2013, for misconduct (serious offense), under the provisions of Chapter 14-12c, with an SPD code of JKQ and a RE 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.  The record does not contain any actions under Article 15 of the Uniform Code of Military Justice.

2.  There is no record of any negative counseling statements in the record.  However, the unit commander’s forward memorandum of recommendation indicates record of counseling being enclosed with the separation packet. 

3.  An MP report, dated 19 June 2012, indicating the applicant was the subject of investigation for driving under the influence (off post).

4.  A civilian police department police report, dated 14 June 2012, indicating the applicant of the subject of being arrested for driving under the influence.

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided two DD Forms 214 for service under current review and service with the Air Force that reflect a discharge date of 31 August 2010; a district court record of judgment/sentence court document, dated13 February 2013; and memorandum, subject: G.I. Bill Counseling IAW AR 621-5, dated 24 January 2013.

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 service record, and the documents and 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 standards for acceptable conduct and performance of duty by military personnel.  The applicant by violating the Army's policy not to abuse alcohol, compromised the special trust and confidence placed in a Soldier.  The applicant, as a Soldier, had the duty to support and abide by the Army's alcohol abuse policies.  By the misconduct of driving under the influence, the applicant knowingly risked a military career and diminished the quality of 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 the applicant’s service mitigated the misconduct or poor duty performance.  

4.  The applicant contends that the charge against him, driving under the influence, and the basis for his separation was dismissed, but was only found guilty of reckless driving which is a traffic moving violation.  However, this action is a procedural step which is part of a normal process, when an alternative forum is chosen.  In this case, the DUI charge was reduced to reckless driving.  The district court record of hearing/judgment documents reflect the applicant was found guilty of DUI with .085 BAC and reckless driving and received a sentence, but placed on a three-year probation subject to conditions; however, the record further reflects the DUI was later reduced on record to reckless driving due to having no prior record, being in armed services, and other circumstances, and was released with conditions.  

5.  Careful consideration was also given to the applicant’s in-service accomplishments and the quality of his service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of the discharge.

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.  

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:  16 October 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























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
ADRB Case Report and Directive (cont)		AR 20130003790

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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