IN THE CASE OF:  	Mr. 

      BOARD DATE:  	23 August 2013

      CASE NUMBER:  	AR20130003835
___________________________________________________________________________

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 general, under honorable conditions discharge to honorable. 

2.  The applicant states, in effect, he would like a chance to clear his name and having a general, under honorable conditions discharge is not good enough.  He was young and made some bad decisions.  He has learned from his mistakes and deeply regrets the decisions he made at that time.  He is older now and would like to see what more he can do for his country.  He now has a lovely wife and five beautiful children to think of as well.  He is interested in current programs that help ex-military members in various rehabilitation programs.  He is currently in school for an electrician’s program and has earned a few certificates.  Although, he would jump at an opportunity to serve his country again, he has a bad back and is not the man he used to be.   

3.  He completed four years in prison and has six months left.  It is an experience he will never forget and he had a lot to apologize for.  There was no jail at Fort Campbell, and although he was held he was found innocent and released on his ETS date.  He would like to challenge the times he was held in prison as opposed to being absent.  He was in prison under military control and was charged with being absent without leave.  He was found innocent and he was not court-martialed, nor did he have to go to court.  He was released from prison and the military.  He has recently found the Lord and is finally using his downfalls and failures as a means to excel and better himself.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		21 February 2013	
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			26 February 2003	
d. Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Chapter 14-12b, 							JKA, RE-3	
e. Unit of assignment:			C Company, 1st Battalion, 502d Infantry Regiment, 						101st Airborne Division (Air Assault), Fort Campbell, 						KY			
f. Current Enlistment Date/Term:	20 February 2001, 3 years
g. Current Enlistment Service:	1 year, 5 months, 15 days
h. Total Service:			1 year, 5 months, 15 days
i. Time Lost:				196 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, 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 20 February 2001 for a period of 3 years.  He was 17 years old at the time of entry, a high school graduate, and completed 1 year, 5   months, and 15 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 20 August 2002, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14, paragraph 14-12b, Pattern of Misconduct. Specifically for:

	a. Being found guilty at a Summary Court-Martial for two violations of Article 86 (AWOL 	for 2 months and failing to report for duty once)
	b. Testing positive for marijuana on (020414) 
	
2.  Based on the above pattern of misconduct, the commander recommended a general, under honorable conditions discharge.

3.  On 20 August 2002, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit a statement on his own behalf.  He indicated he would appear before an administrative separation board; however, he was not entitled to such a board.  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 20 February 2003, the separation authority approved and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 26 February 2003, under Army Regulation 635-200, Chapter 14-12b, with a general, under honorable, an SPD code of JKA, and an RE code of 3.               

6.  The applicant's record shows he was absent without leave (AWOL) during the periods    (020108-020311), (020722-020722), 020908-021111), (021126-021203), and (021224-030226); for a total of 196 days.  He surrendered on 3 December 2012; however, his mode of return for the other AWOL instances is unknown. 



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.   A positive urinalysis report is contained in the record coded, IU, Inspection Unit, dated     17 April 2002, marijuana.

2.  Eight negative counseling statements dated between 16 July 2002 and 9 December 2002, for AWOL (multiple) and failure to obey an order or regulation (multiple), drunk on duty, wrongful use and possession of marijuana, failure to follow instructions (multiple), incident with another Soldier, failure to be at appointed place and time of duty (multiple),and general article 134.  An unexecuted record of proceedings for wrongful use of marijuana is also present.

3.  The unit commander’s memorandum of notification indicates the applicant was found guilty by a summary court-martial (NIF).

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 with a self authored statement; five civilian course completion certificates, letter of selection to participate in a VE class in electrical fundamentals, and a DD Form 214.

POST-SERVICE ACTIVITY: 

None were provided by the applicant.

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 his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by a summary court-martial and numerous negative counseling statements for 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 that he was young and immature at the time of the discharge.  The record shows the applicant met entrance qualification standards to include age.  There is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  The applicant has indicated he would reenlist in the Army.  However, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on AR 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  There are no basis upon which to grant a change to the reason or to the RE code.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters 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 if appropriate.  

6.  The applicant contends that an upgrade of his discharge would allow him to pursue education as an electrician.  However, eligibility for educational benefits through the use of the 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.

7.  The applicant contends that although, he was imprisoned by the military he was never court-martialed.  However, 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.  

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:  23 August 2013      Location: Washington, DC

Did the Applicant Testify?  No 

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)		AR20130003835



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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