IN THE CASE OF:  	MR. 

      BOARD DATE:  	25 September 2013

      CASE NUMBER:  	AR20130003938
___________________________________________________________________________

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, that the charges against him were found in his favor and no other case was pending against him.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		22 February 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			7 December 2012
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			HQ, 158th IN Bde, Fort Rucker, AL
f. Current Enlistment Date/Term:	15 August 2007, 6 years
g. Current Enlistment Service:	5 years, 3 months, 23 days 
h. Total Service:			12 years, 8 months, 1 day
i. Lost time:				None
j. Previous Discharges:		RA-000407-020416/HD										RA-020417-050524/HD										RA-050525-070814/HD
k. Highest Grade Achieved:		E-7
l. Military Occupational Specialty:	11B4P, Infantryman
m. GT Score:				90
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan x 3 (020801-030219, 050228-060312, 						and 070512-080729) and Iraq (030712-040215)
q. Decorations/Awards:		BSM, ARCOM-4, AAM-3, AGCM-3, NDSM, 							ACM-w/3CS, ICM-w/Arrowhead, GWOTEM, 							GWOTSM, NPDR-3, ASR, OSR-2, NATOMDL, CIB, 						EIB
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		None
u. Prior Board Review:			No

SUMMARY OF SERVICE:		

After serving 7 years 4 months and 8 days in the Regular Army, on 15 August 2007, the applicant reenlisted in the Regular Army for a period of 6 years.  He was 24 years old at the time of reenlistment and a high school graduate.  His record indicates he served three tours of duty in Afghanistan and a tour of duty in Iraq.  He earned a BSM, four ARCOM's, three AAM's, three AGCM's, the CIB and EIB and achieved the rank of SFC/E-7. 
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant’s signature.  

2.  The DD Form 214 indicates that on 7 December 2012, the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c, for misconduct (serious offense), with a characterization of service of general, under honorable conditions.  The DD Form 214 also shows a Separation Program Designator (SPD) code of JKQ and a reentry (RE) code of 3.  

3.  On 27 November 2012, DA, USA Installation Management Command, Headquarters United States Army Garrison, Fort Rucker, Fort Rucker, AL, Orders Number 332-0502, discharged the applicant from the Army effective 7 December 2012.

4.  The applicant's available record does not contain any evidence of unauthorized absences or time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Discharge Orders 332-0502, dated 27 November 2012

2.  The applicant received six successful NCOERs (five Among the Best and one Fully Capable) covering the period 1 April 2007 to 19 April 2012.

3.  The applicant's available record does not contain any recorded actions under the UCMJ or counseling statements.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, court document, dated 12 February 2013, discharge orders, dated 27 November 2012, memorandum, dated 22 May 2012, subject ADAPT Program Participation, memorandum for record, dated 9 November 2012, Mental Health Clearance, and copy of his DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

The applicant states in effect the court case against him was found to be in his favor. 

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 available record of service and the issues and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The applicant’s available record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process.  

3.  The DD Form 214 also indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c by reason of misconduct (serious offense), with a characterization of service of general, under honorable conditions.  Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant's contention about the charges against him being found in his favor without any other case pending against him was carefully considered.  However, Army Regulation         635-200, in pertinent part, stipulates that a Soldier may be separated 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.
5.  Furthermore, there is insufficient evidence available in the official record to make a determination as to whether his contention has merit.  Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted.  

6.  If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record.

7.  Therefore, based on the available evidence and the government presumption of regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing: Records Review     Date: 25 September 2013      Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None

Witnesses/Observers: NA 

Board Vote:
Character Change:  2	No Change:  3
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)		AR20130003938



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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