IN THE CASE OF:  	

      BOARD DATE:  	22 May 2013

      CASE NUMBER:  	AR20130003987
___________________________________________________________________________

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 to be 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 characterization of his discharge was inequitable because it was based on one isolated incident and did not take into account his exemplary service record and the statements written on his behalf.  He was wrongly accused of having a sexual relationship with a junior Soldier when the relationship was consensual.  He was later accused of taking illegal drugs but they had been prescribed for his spouse and for him to help relieve his tooth ache.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		25 February 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			17 April 2012
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 14-12c						JKQ, RE-3        
e. Unit of assignment:			HHC, 10th Special Forces Group, Fort Carson, CO
f. Enlistment Date/Term:		4 August 2011, 6 years 
g. Current Enlistment Service:	0 years, 8 months, 14 days
h. Total Service:			3 years, 10 months, 28 days
i. Time Lost:				None
j. Previous Discharges:		RA (080520-110803), HD 
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	42A10, Human Resources Specialist
m. GT Score:				91
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (091006-100116)
q. Decorations/Awards:		ARCOM-2, JSAM, AAM, AGCM, NDSM, ICM-CS						GWOTSM, OVSM, NPDR, ASR, JMUA
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None	
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 20 May 2008.  On 4 August 2011, he reenlisted for a period 6 years; he was 22 years old at the time and a high school graduate.  When his discharge proceedings were initiated he was serving at Fort Carson, CO.  His service record indicates he served a combat tour in Iraq and completed a total 3 years, 10 months, and 28 days of active duty service.  His record of achievements shows he was awarded 2 ARCOMs, JSAM, AAM, AGCM, and OVSM.

SEPARATION FACTS AND CIRCUMSTANCES

1.  The service record does not contain the applicant’s separation documents.  However, the applicant provided sections of his discharge packet that indicate on 4 April 2012, the unit commander recommended discharge proceedings against the applicant for the following reasons:

	a. Failed to obey a lawful general regulation between 7 April 2011 and 31 May 2011
	b. Committed adultery between 7 April 2011 and 31 May 2011
	c. Wrongfully used oxycodone between 5 September 2011 and 8 September 2011
	d. Wrongfully used oxymorphone between 5 September 2011 to 8 September 2011

2.  Based on the above misconduct the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.  

3.  The applicant’s election of rights and the notification letter are not contained in the available record and the presumption of government regularity prevails in the discharge process.  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 4 April 2012, 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 was discharged on 17 April 2012, for misconduct (serious offense), under the provisions of Chapter 14-12c, with an SPD code of JKQ and a 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.  The record does not contain any actions under Article 15 of the Uniform Code of Military Justice.  However, the applicant was discharged as an E-4/SPC, the document that would explain the reduction in grade is not in the record.

2.  An NCOER for the period of 1 December 2010 through 30 November 2011, the rater assessed him as among the best and the senior rater as 1/1 for overall performance and potential.


EVIDENCE SUBMITTED BY THE APPLICANT 

Character reference statements from his former chain of command, portions of the discharge packet, enlistment documents, awards, certificates, reenlistment contract, and his discharge Order.

POST-SERVICE ACTIVITY: 

The applicant states that he is pursuing a college education.

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 service record 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 evidence provided by the applicant confirms that his 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.  

3.  The applicant provided several character reference statements that were duly considered.  They speak highly of the applicant’s performance and recognize his good service and don’t condone what he did but acknowledge this was an isolated incident which was out of character.  

4.  The applicant contends his service was exemplary and the incident that caused his discharge was the only one in his entire Army career.  However, even though a single incident, the discrediting entries as described in the documents with the application constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The applicant's misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  These incidents of misconduct clearly diminished the quality of the applicant's service below that meriting a fully honorable discharge. 

5.  Careful consideration was given to the applicant’s in-service accomplishments and the quality of his service during the initial portion of the enlistment under review.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of the discharge.

6.  The applicant contends he was accused of using illegal drugs but it was not true.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the applicant produced any evidence, to support the contention that he was unjustly discriminated.   In fact, the applicant’s discharge packet indicates he failed to obey a lawful general regulation, committed adultery, and wrongfully used oxycodone and oxymorphone.  The applicant’s statements alone do not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence to corroborate his contentions. 

7.  The applicant contends his commanders did not consider all the facts and circumstances in his case in making a decision to discharge him.  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.  By regulation, an under other than honorable conditions (UOTHC) discharge is normally appropriate for a member separated by reason of serious misconduct.  It appears the applicant’s generally good record of service was the basis for his receiving a general discharge instead of the normal UOTHC discharge.  

9.  The applicant requests educational benefits through the use of the GI Bill in order to return to school and obtain a college degree.  However, 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.

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:  22 May 2013		Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

Witnesses/Observers: N/A

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 RE Code to:			No Change
Grade Restoration to:			No Change
Change Authority for Separation:		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	UOTH - Under Other Than                           			               Honorable Conditions
ADRB Case Report and Directive (cont)		AR 20130003987

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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