IN THE CASE OF:	

      BOARD DATE:  	4 October 2013

      CASE NUMBER:  	AR20130004564
___________________________________________________________________________

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 to upgrade his characterization of service from under other than honorable to honorable.

2.  The applicant, in pertinent part states, in effect, he was erroneously discharged—it was a result of bias and hatred based on preconceived notions.  He and the Army had irreconcilable differences.  He states after he failed the SFAS in June 2011, he waited for a few months to transfer to a new unit in the regular Army, which inevitably meant a deployment to Afghanistan.  (Note the applicant detailed the circumstances surrounding the events concerning his conscientious objection to participating in a war, which he neither believed nor fully understood.)  During the months he awaited for his transfer, he tried, although rather passively aggressive to get chaptered out of the Army, it was to no avail.  He thinks the reason he never tried for separation due to “conscientious objection” was because he knew it would be misconstrued as desertion, being that deployment was right around the corner.  (The applicant provided additional details on the circumstances surrounding the events that led to his discharge.)  He states Soldiers who committed offenses never received the same punishment when he received his first field grade Article 15, and that two weeks prior to his Article 15, he served extra duty punishment as a result of being hazed constantly by his leadership.  He received his second field grade Article 15 due to leaving his post without being properly relieved.  He was punished unfairly for taking the time to get good food after a latrine break that he received permission for.  There were many more instances of unfair treatment/punishment, but provides two pertinent ones to make his point.  He concludes he believes he turned from a legitimate conscientious objector into a deserter, and as a result suffered unfair treatment and punishment that he feels should be carefully considered by the Board.  In a separate statement, he provides that he has demonstrated an infallible civilian record both before and after his time in the Army.  His record was clean prior to his deployment—he was a squared away Soldier.  He never meant to make any trouble at his unit; he was simply a conscientious objector, but deployed anyway and supported his unit in every way he could besides going on patrols.  His unit was extra harsh on him for that reason and thus scrutinized his every move, resulting in getting in trouble incessantly.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	4 March 2013
	b.	Discharge Received:	Under Other Than Honorable Conditions
	c.	Date of Discharge:	29 August 2012 
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200 
			Paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	D Co, 2nd Bn, 508th Parachute Infantry Regiment 
			Combat Outpost Zharif Kheyl, Afghanistan
	f.	Current Enlistment Date/Term:	12 October 2010, 6 years
	g.	Current Enlistment Service:	1 year, 10 months, 18 days
	h.	Total Service:	2 year, 0 months, 23 days
	i.	Time Lost:	None 
	j.	Previous Discharges:	USMC (100115-100320) / UNC
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	11B1P, Infantryman
	m.	GT Score:	NIF 
	n.	Education:	Bachelor Degree
	o.	Overseas Service:	SWA 
	p.	Combat Service:	Afghanistan (120216-121101)
	q.	Decorations/Awards:	NDSM; ACM-2CS; GWOTSM; ASR; NATO MDL
	r.	Administrative Separation Board: 	No 
	s.	Performance Ratings:	None 
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 12 October 2010, for a period of 6 years.  He was 24 years old at the time of entry and had a bachelor degree.  He served in Afghanistan.  His record documents no acts of valor or significant achievement.  He completed 2 years and 23 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that on 9 June 2012, 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—commission of a serious offense, specifically for the following offenses:

	a.	sleeping while on post (120303)
	b.	being derelict in the performance of his duties (120318)
	c.	leaving post without being properly relieved (120411) 
	d.	disobeying an NCO by violating extra duty instructions on divers occasions (120317-120608)
	e.	being a continuous security concern to chain of command during deployment

2.  The unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 10 June 2012, the applicant waived consulting with legal counsel, indicated he understood the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board, 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 16 June 2012, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  
5.  The applicant was discharged from the Army on 29 August 2012, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) of JKQ and an 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:

There are no negative counseling statements or actions under the Uniform Code of Military Justice.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided no further evidence with his self-authored statement in his application.

POST-SERVICE ACTIVITY: 

The applicant provided none.  

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, 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 serious incidents of misconduct, the applicant diminished the quality his service below that meriting a general or 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 other Soldiers with similar offenses were not punished, discharged, or allowed to stay in the Army.  However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.

5.  The applicant contends that he suffered unfair treatment and punishment by members of his chain of command; however, he 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.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge.

6.  The applicant contends the discharge was unjust because his discharge was a result of bias and hatred based on preconceived notions.  His contentions were carefully considered.  However, 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.  The applicant’s statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge.

7.  The applicant contends that he had good service prior to his deployment and was a squared away Soldier.  The quality of applicant’s service prior to the incidents that caused the initiation of discharge proceeding was 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 serious misconduct.
8.  The applicant contends he was simply a conscientious objector who objected to participating in a war, which he neither believed nor fully understood.  However, military personnel who claims and applies for conscientious objector status for conscientiously objecting to participation in war in any form or to the bearing of arms are processed in accordance with Army Regulation 600-43, while serving in an active or reserve status.  His claim of being a conscientious objector after being discharged from military service is not relevant to his discharge under current review.  

9.  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.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

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:  4 October 2013       Location: Washington, DC

Did the Applicant Testify?  No 

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)		AR20130004564

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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