IN THE CASE OF:  	

      BOARD DATE:  	10 July 2013

      CASE NUMBER:  	AR20130004259
___________________________________________________________________________

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 his general, under honorable conditions discharge be upgraded to fully honorable.  

2.  The applicant states, in effect, he would like to be reinstated in the Army with all pay and allowances because he believes he was erroneously separated.  He contends he was discharged for being arrested on 26 Jun 2011 but was never convicted of a commission of a serious offense and the attached court documents will show that the charges against him were dismissed due to a lack of evidence or declined..  He also contends he never received a Summary Article 15 for violation of Article 86 of the Uniform Code of Military Justice (UCMJ).  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		25 February 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			31 August 2011
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			A Btry, 1st Bn, 43rd ADA, Fort Bliss, TX
f. Current Enlistment Date/Term:	30 March 2010, 5 years and 23 weeks
g. Current Enlistment Service:	1 year, 5 months, 1 day
h. Total Service:			1 year, 5 months, 1 day
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3	
l. Military Occupational Specialty:	14J10, AD C4I TOC ENH OP/MNT
m. GT Score:				112
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, ASR
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 30 March 2010, for a period of 5 years and      23 weeks.  He was 20 years old at the time of entry and a high school graduate.  His record documents no acts of valor or significant achievement.  He completed 1 year, 5 months, and    1 day of active duty service.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 12 July 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason of misconduct (serious offense).  Specifically for the following offenses: 

a. being arrested by the El Paso, TX police department for possession of a firearm on premises serving alcohol, resisting arrest and interference with public duties on (110626)

b. receiving a Summarized Article 15 for violation of Article 86 (110411) of the UCMJ.

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge.

3.  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.  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 17 August 2011, 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 from the Army on 31 August 2011, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), with a Separation Program Designator code (SPD) of JKQ and a RE code of 3. 

6.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The applicant's record does not contain any recorded actions under the UCMJ or counseling statement.  However, the unit commander's notification memorandum indicates the applicant received a summarized Article 15 on 11 April 2011. 

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided an online application, documents from his discharge packet, and two letters from the District Attorney in El Paso, TX, dated 13 February 2013.



POST-SERVICE ACTIVITY: 

None 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.  

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 erroneously separated from the Army for charges that were dismissed against him for a lack of evidence.  After reviewing the documents submitted with the application it was noted that the district attorney for the 34th Judicial District, EL Paso, TX, indicated in the letters that the charges were declined by their office for the felony offense on 12 December 2011 and for the misdemeanor offense on 21 September 2011.  However, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation.

5.  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.

6.  The applicant also contends he never received a Summary Article 15 for a violation of Article 86 of the UCMJ.  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.  The evidence of record shows the applicant was notified by his commander that he was being recommended for separation based on two offenses to include receiving a Summarized Article 15 for violation of Article 86 of the UCMJ.  The applicant acknowledged receiving the discharge notification on 12 July 2013, with the authentication of his signature.  The applicant produced no evidence to support his contention that he did not receive a Summarized Article 15.  The applicant’s statement alone does not overcome the government’s presumption of regularity.

7.  The applicant would like to be reinstated in the Army with all pay and allowances.  However, the applicant’s requested actions do not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization. 

8.  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:  10 July 2013   Location: Washington, DC

Did the Applicant Testify?  NA 

Counsel: None



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:		No Change
Change RE Code to:			No Change
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)		AR20130004259



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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