IN THE CASE OF:  	Mr. 

      BOARD DATE:  	21 August 2013

      CASE NUMBER:  	AR20130003934
___________________________________________________________________________

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 from general, under honorable conditions to honorable.

2.  The applicant states, in effect, he served 26 months of honorable service with negative counselings not service related; but were retaliatory to get him discharged from the Service. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		1 March 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			30 January 2009
d. Reason/Authority/SPD/RE Code:	Pattern of Misconduct , AR 635-200, Chapter 14 						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			C Co, 1-17th Infantry Regiment, Fort Lewis, WA
f. Current Enlistment Date/Term:	16 November 2006, 5 years and 18 weeks
g. Current Enlistment Service:	2 year, 2 months, 15 days
h. Total Service:			2 year, 2 months, 15 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				91
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:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 16 November 2006, for a period of 5 years and 18 weeks.  He was 21 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 11B10, Infantryman.  His record does not contain any evidence of acts of valor or meritorious achievements.  He achieved the rank of PFC/E-3.  He was serving at Fort Lewis, WA, when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 28 October 2008, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of a pattern of misconduct.  Specifically for the following offenses:

     a.  being arrested for fraud and stealing his land lord’s credit card (080720)

     b.  being convicted for second degree identity theft and sentenced to $1,000 fine and 172 hours of community service (081013)

     c.  failing to report to his appointed place of duty on divers occasions

     d.  driving his vehicle while his license was suspended by the State of New York for unpaid fines

     e.  his son being removed from his custody by social services for child abuse

     f.  driving with expired tags (080430)

     g.  being evicted from his off post residence for brandishing a pistol (080709)

     h.  failing to pay his debts as he was required to do

     i.  disobeying and lying to noncommissioned officers in the company on several occasions

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 29 October 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement on his 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 21 November 2008, 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’s service record does not contain any evidence of unauthorized absences or time lost.  

6  The applicant was discharged from the Army on 30 January 2009, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, a Separation Program Designator code (SPD) of JKA and an RE code of 3.



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 21 June 2007 for willfully disobeying a lawful from 2LT H (070527); the punishment consisted of forfeiture of $340 pay (suspended), extra duty for 14 days and restriction for 14 days, (CG).

2.  He received 25 negative counseling statements which were completed between 3 April 2007 and 7 October 2008, for driving without a valid driver’s license on more than one occasion, explaining extra duty and restriction procedures, failing to secure equipment and to keep equipment clean, his dog was seized by animal control, being irresponsible in managing his finances, disrespecting his chain of command, misguided priorities, initial counseling, his head not being fully shaved, professional development training/counseling on more than one occasion, substandard performance counseling on more than one occasion, expired vehicle registration, disobeying a lawful order from an officer, disobeying a lawful order from a NCO, domestic violence, absent for room inspection, failing to report for duty on more than one occasion, failing to keep chain of command informed, disobeying a lawful order, visitation policy, court order for identity theft, and recommendation for separation.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293; a DD Form 214; and Discharge Orders 022-0016.

POST-SERVICE ACTIVITY: 

The applicant did not provide any 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 his military record, the issues and documents 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 pattern 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 an Article 15 and 25 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 he served 26 months of honorable service with negative counselings not service related; but retaliatory to get him discharged from the Service.  The service record indicates the applicant committed many discrediting offenses which constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicant’s numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order, discipline and justified a discharge for a pattern of misconduct.  

5.  Further, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

6.  Also, 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.  

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:  21 August 2013        Location:  Washington, DC

Did the Applicant Testify:  NA

Counsel:  NA 

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)		AR20130003934



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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