IN THE CASE OF:  	Mr. 

      BOARD DATE:  	27 September 2013

      CASE NUMBER:  	AR20130003827
___________________________________________________________________________

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 an upgrade of his discharge.

2.  The applicant states, in effect, that his discharge was inequitable because it was based on one isolated incident; an APFT failure.  He has tried to rejoin the Army and was denied due to a DUI.  He further states that he never received an Article 15 or counseling.  He strongly desires to start school and wants benefits including the Post 9/11 GI Bill.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:  			20 February 2013		
b. Discharge Received:  			General, Under Honorable Conditions	
c. Date of Discharge:				8 March 2011		
d. Reason/Authority/SPD/RE Code:		Unsatisfactory Performance, Chapter 13 
AR 635-200, JHJ, RE-3	
e. Unit of assignment:				Company E, 1st Battalion, 2nd Aviation
Regiment (Attack), Ft Carson, CO   
f. Current Enlistment Date/Term:  		29 January 2008, 3 years and 23 weeks
g. Current Enlistment Service:  		3 years, 1 month, 10 days	
h. Total Service:  				3 years, 1 month, 10 days
i. Time Lost:  					None
j. Previous Discharges:  			None
k. Highest Grade Achieved:  			E4/Specialist
l. Military Occupational Specialty:  		92F10, Petroleum Supply Specialist 
m. GT Score:  					84
n. Education: 					HS Graduate/one semester of college 	
o. Overseas Service:  				Korea
p. Combat Service:  				None
q. Decorations/Awards:  			AAM, NDSM, KDSM, GWTSM, ASR, OSR	
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 29 January 2008, for 3 years and 23 weeks.  He was 19 years old at the time of entry and a high school graduate and completed one semester of college.  He served in Korea for six months.  He earned an Army Achievement Medal and completed three years, one month, and 10 days of active duty service.  At the time his discharge proceedings were initiated, he was serving at Fort Carson, CO.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 25 January 2011, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 13, for unsatisfactory performance, specifically for;

      a.  failing two consecutive Army Physical Fitness Test (APFT).
	b.  displayed expired number plates (60 days and over) (100222) 
c.  drove his motor vehicle upon the highway when his license was restrained for an
     alcohol related offense, (090122), 
d.  involved in a traffic accident by making an in proper right hand turn in a government
     vehicle and immediately fled the scene (090122)
e.  arrested and transported to CJC after being stopped for a minor traffic violation, and
     failing to perform satisfactorily roadside maneuvers, and having a warrant out of El
     Paso County (101208)

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

3.  On 01 February 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, acknowledged that he was not entitled to have his case heard by 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 discharge, under honorable conditions.  

4.  On 16 February 2011 the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  The applicant was not transferred to the U.S. Army Reserve Control Group.  

5.  The applicant was separated on 08 March 2011, under Army Regulation 635-200, Chapter 13, with a general, under honorable conditions discharge, an SPD code of JHJ, and an 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.  Ten negative counseling statements, dated between 29 September 2010 and 11 January 2011, for APFT failures, lying to an NCO, failure to inform his chain of command of legal obligations, and failure to report.

2.  Two Military Police Reports dated 8 December 2010 and 22 January 2009, for one DUI, and various traffic offenses and a civilian police report dated 8 December 2010, from the El Paso County Sheriff’s Office for a DUI, two civilian tickets dated 22 February 2010, three APFT test records dated 11 January 2011, 2 September 2010, and 18 June 2009.  
      
EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a copy of his DD Form 214. 

POST-SERVICE ACTIVITY: 

None listed

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this Chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.
 
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.  By the unsatisfactory performance, the applicant diminished the quality of his service below that meriting an honorable characterization of service.   

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 his discharge was inequitable because it was based upon an APFT failure.  He states that he has tried to rejoin the Army and was denied reentry due to the DUI, which was not the reason he was discharged.  Army Regulation 635-200, Chapter 13-2e, states that initiation of separation proceedings is required for Soldiers without medical limitations that has two consecutive failures of the Army Physical Fitness Test.  The evidence of record shows the applicant had three record Army physical fitness tests and failed two of them which led to his separation from the Army; along with the other misconduct of record to include his civilian charge from the El Paso County Sheriff’s Office for driving while under the influence.  

5.  If the applicant desires to reenlist, he should contact the local recruiter to determine his eligibility to reenlist.  Those individuals can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes.

6.  The applicant further contends he never received an Article 15 or counseling and strongly desires to start school and wants benefits including the Post 9/11 GI Bill.  The evidence of record shows the applicant was counseled on several occasions for failing the Army physical fitness test, special population PT follow up, lying to a noncommissioned officer, not securing the paperwork for his community service, failing to inform his chain of command of his legal obligations, failing to report and various other acts of misconduct.  

7.  Additionally, 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.

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:  27 September 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)		AR20130003827

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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