IN THE CASE OF:  	Mr. 

      BOARD DATE:  	11 September 2013

      CASE NUMBER:  	AR20130004568
___________________________________________________________________________

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 under other than honorable conditions discharge to honorable or in the alternative general, under honorable conditions. 

2.  The applicant states, in effect, that the civilian charges that were brought against him were dropped 29 November 2012 and the case was dismissed due to lack of evidence and foundation.  He was discharged out of the military after his case was dismissed.  His unit did not allow the legal process to be completed because he did not receive the paperwork that his case was dismissed until January 2013.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		4 March 2013		
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			13 December 2012	
d. Reason/Authority/SPD/RE Code:	Misconduct, (Serious Offense), AR 635-22,     								Chapter 14-12c, JKQ, RE-3	
e. Unit of assignment:			331st Transportation Company, 11th Transportation 						Battalion, 7th Sustainment Brigade, Fort Eustis, VA	
f. Current Enlistment Date/Term:	21 January 2010, 4 years (taken from case files
g. Current Enlistment Service:	2 years, 10 months, 22 days (applicant’s ETS is 							reflected as 140120)
h. Total Service:			18 years, 8 months, 0 days (DD Form 214 is 								incorrect)
i. Time Lost:				309 days
j. Previous Discharges:		USAR 940412-940519, NA
						IADT   940520-941122, HD
						USAR 941123-960327, NA
						RA      960328-991226, HD
						RA	 990328-030107, HD
						RA	 030108-050820, HD
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	88H10 Cargo Specialist, 44B10 Metal Worker 
m. GT Score:				95
n. Education:				HS Graduate
o. Overseas Service:			Korea, South West Asia
p. Combat Service:			Iraq (030221-040220), (050418-060414)
q. Decorations/Awards:		ARCOM-2, AAM-4, AGCM-5, NDSM-2, ICM-2CS, 							GWOTEM, GWOTSM, KDSM, MOVSM, NPDR, ASR, 						OSR-3, 
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Army National Guard on 12 April 1994, and reenlisted in the Regular Army on 21 January 2010, for a period of 4 years.  He was 36 years old at the time of reentry and a high school graduate.  He served in Korea, and Iraq.  He earned two ARCOM’s, four AAM’s, and five AGCM’s.  He completed a total of 18 years and 8 months of service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record shows that 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, for being arrested by the county sheriff’s office for violating a protective order on 26 August 2011, 27 August 2011, and 27 September 2011, which resulted in a felony conviction.  Additionally, the applicant was counseled on multiple occasions for failing to report, failing to obey lawful order, and lying to commissioned officers

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

3.  On 6 June 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions and submitted 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 of the separation with an under other than honorable conditions discharge.  

4.  On 3 October 2012, the separation authority disapproved the conditional waiver request, and referred the discharge proceedings to an administrative separation board.  The applicant was notified to appear before an administrative Separation Board and advised of his rights.

5.  On 7 November 2012, the applicant again consulted with legal counsel, was advised of the impact of the discharge action and unconditionally waived his right to an administrative separation board and did not submit a statement on his own behalf. 

6.  On 29 November 2012, and again on 4 December 2012, the separation authority approved the unconditional waiver request and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.   

7.  The applicant was discharged from the Army on 13 December 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. 

8.  The applicant’s record of service indicates 309 days of time lost for being confined by civilian authorities from 26 August 2011 to 27 September 2011; 1 October 2011 to 20 January 2012; and 19 April 2012 until his return on 8 October 2012.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Three Personnel Action Forms, DA Form’s 4187, dated 3 October 2011, 21 January 2012, and 19 April 2012, which indicates the applicant was confined by civilian authorities on three separate occasions. 

2.  Financial Liability Investigation of Property Loss dated, 20 November 2012, which indicates the applicant occurred loss of government property due to being confined by civilian authorities.

3.  Two Warrants’ of Arrest-Misdemeanor, case number JA013153-06-0 dated 7 September 2011; and case number JA01353-08-00 dated 10 November 2011, for protective order violation.

4.  A Warrant of Arrest-Felony, dated 18 April 2012 for protective order violation. 
      
5.  Three negative counseling statements that are dated between 20 January 2012 and 19 March 2012, for chapter discharge initiation, failure to be at accountability formation, failure to obey a lawful order and lying to a commissioned officer.
      
6.  A CID, Agent’s Investigation Report, ROI 0134-11-CID222 dated 1 September 2011, that indicates the applicant was transferred from civilian custody to military custody.  

7.  A CID, Agent’s Investigation Report, ROI 0134-11-CID222-44714 dated 3 October 2011, that indicates the applicant was the subject of an investigation for domestic violence.  

8.  A Sheriff’s Incident/Investigation Report, case number 1102843 dated 26 August 2011, shows the applicant was charged assault, abduction and brandishing a firearm.

9.  Memoranda dated, 18 January 2012 and 16 November 2012, which indicates incidents 20120040 and 2011038 met the criteria for adult physical maltreatment and adult emotional maltreatment respectively and entry into the DOD Central Registry database.

10.  Two military protective orders dated, 6 September 2011, 20 January 2012.

11.  Eight NCOER’s, the final NCOER covers the period of 1 August 2010 to 31 July 2011.  The applicant was rated as fully capable and received 3/3 from the senior rater.
EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, 5 DD Form’s 214, order dismissing rule to show cause for case number CR12R1-6998-05 (probation violation-original conviction violation of protective order, M, 16.2-253.2 offense date 27 August 2011), copies of various Army award certificates, order 230-039, tab inserts for evaluations, 8 NCOERs, tab insert for service schools, 3 DA Form’s 1059, tab insert for DD Form 214 and ERB, 2 copies of transition orders, 3 copies of orders 053-0019, preseparation counseling checklist, enlistment contract from 1996, and an NGB Form 22. 

POST-SERVICE ACTIVITY: 

None were 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 general or a fully honorable discharge.  The applicant’s record of service was marred by multiple arrests and periods of confinement.

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 his civilian charges were dropped. However, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or 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 or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. 

5.  The records show the proper discharge and separation authority procedures were followed in this case.  

6.  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:  11 September 2013       Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

Witnesses/Observers: NA 

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:	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)		AR20130004568



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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