IN THE CASE OF:  	Mr. 

      BOARD DATE:  	23 August 2013

      CASE NUMBER:  	AR20130003952
___________________________________________________________________________

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 was unjustly removed from service for seeking help after his grandfather passed away and was discharged two and a half weeks prior to the expiration of his term of service (ETS).  He was seeking mental health assistance and was asked by unit his leadership not to pursue it due to deployment preparations for combat.  He served his county honorably in garrison and in combat; his behavior issues arose due to his grandfather’s passing.  His discharge was unjust and discriminatory, other people with the same issues were allowed to finish their initial enlistment and ETS from the military.  His discharge has hindered his ability to use his military service in attempting to find meaningful civilian employment to support himself and his family.  He would not have been discharged if he was in another military unit, he would have been allowed to finish his contract, asked not to reenlist, leave the military service allowing him to use his military service as a recommendation to a civilian employer.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		22 February 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			18 June 2010
d. Reason/Authority/SPD/RE Code:	Pattern of Misconduct , AR 635-200, Chapter 14, 						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			A Troop, 1-10 Cavalry Regiment, Fort Carson, CO
f. Current Enlistment Date/Term:	26 February 2007, 3 years and 18 weeks
g. Current Enlistment Service:	3 years, 3 months, 23 days
h. Total Service:			3 years, 3 months, 23 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	19D10 D3, Cavalry Scout
m. GT Score:				121
n. Education:				GED Certificate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (080901-090818)
q. Decorations/Awards:		NDSM, ICM-W/2 CS, GWOTSM, ASR, OSR
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 26 February 2007, for a period of 3 years and 18 weeks.  He was 22 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 19D10 D3, Cavalry Scout.  His record also shows he served a combat tour, did not earn any awards for meritorious achievements and attained the rank of PFC/E-3.  He was serving at Fort Carson, CO, when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 5 May 2010, 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.  failing to report numerous times

     b.  making false official statements

     c.  disrespecting a noncommissioned officer

     d.  disobeying a noncommissioned officer

     e.  pending civil charges for a speed contest, failing to appear, and speed exhibition

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 6 May 2010, the applicant waived his right to consult 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 of the separation with a general, under honorable conditions discharge.  

4.  On 25 May 2010, 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 18 June 2010, 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 19 November 2009 for with intent to deceive, making a false official statement to an NCO two times (091102, 091102); the punishment consisted of forfeiture of $326 pay (suspended), extra duty for 14 days and restriction for 14 days, (CG).

2.  An Article 15, dated 28 June 2009 for being disrespectful in language toward a noncommissioned officer (SGT), (090622); and willfully disobeying a lawful order from a noncommissioned officer (SGT), (090623); the punishment consisted of reduction to E-1, forfeiture of $326 pay (suspended), 14 days (suspended) of extra duty (CG).

3.  He received 16 negative/performance counseling statements which were completed between 8 August 2008 and 29 January 2010, failing an inspection, failing to comply to corrective training, insubordinate conduct on more than one occasion, failing to report on numerous occasions, monthly performance counseling, promotion eligibility, failing to meet height/weight standards, being apprehended by civil authorities, falling out of the company run numerous times, multiple driving violations, a court appearance and his driving privileges revoked.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293; grandfather’s death, DD Form 369 (Police Record Check), Chapter 14 discharge packet (44 pages), court documents (9 pages), a self-authored statement, DD Form 214, and Discharge Orders.

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 two Article 15s and numerous 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 was unjustly discharged for seeking help after his grandfather passed away and being within two and a half weeks from his scheduled ETS.  He was seeking mental health assistance and was asked by his unit leadership not pursue it due to their imminent combat deployment.  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. 

5.  Moreover, the applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  

6.  The applicant further contends he served his county honorably in garrison and in theater of combat and his behavior issues arose due to his grandfather’s passing.  The applicant’s service accomplishments and the quality of his service prior to the incidents which caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct, multiple negative counseling statements and the documented actions under Article 15 of the Uniform Code of Military Justice.

7.  The applicant also contends his discharge was unjust and discriminatory, other people with the same issues were allowed to finish their initial enlistment and ETS from the military.  Although the applicant alleges he experienced discrimination during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.

8.  The applicant additionally contends his discharge has hindered his ability to use his military service in attempting to find meaningful civilian employment to support myself and his family.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

9.  Finally, the applicant contends he would not have been discharged if he would have been in another military unit, would have been allowed to finish his contract, asked not to reenlist, and leave the Army allowing him to use his military service as a reference for any future civilian employer.  The rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.

10.  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?  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)		AR20130003952



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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