IN THE CASE OF:  	

      BOARD DATE:  	23 September 2013

      CASE NUMBER:  	AR20130004610
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, hearing his testimony 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 and the narrative reason for discharge changed.

2.  The applicant states, in effect, that he was unjustly discharged and unfairly treated.  He contends he requested a General Court-Martial which he was denied.  He also contends he was ordered to active duty for 365 days and that he completed 11 months and 16 days.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		8 March 2013
b. Discharge received:			General, Under Honorable Conditions
c. Date of Discharge:			13 September 2009
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14 						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			A Co, 2d Bn, 142nd IN, APO AE
f. Current Enlistment Date/Term:	28 August 2008, 400 days
g. Current Enlistment Service:	0 years, 11 months, 16 days
h. Total Service:			2 years, 7 months, 4 days
i. Time Lost:				None
j. Previous Discharges:		USN-920407-920422/UNC										    (Break-in-Service)										ARNG-070126-070213/NA										IADT-070214-070629/NIF										ARNG-070630-080827/NA										    (Concurrent Service)
k. Highest Grade Achieved:		E-4
l.  Military Occupational Specialty:	42A10, Human Resources Specialist
m. GT Score:				NIF
n. Education:				College Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Kuwait/Iraq (081104-090727)
q. Decorations/Awards:		NDSM, ICM-w/CS, GWOTSM, ASR, OSR 							AFRM-w/M Device
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None
u. Prior Board Review:			No



SUMMARY OF SERVICE:	

After serving in the United States Navy, the applicant enlisted in the Army National Guard on 26 January 2007, for a period of 7 years and 50 week.  He was 35 years old at the time of entry and a college graduate.  On 28 August 2008, he was order to active duty in support of Operation Iraqi Freedom for 400 days.  His record documents no acts of valor or significant achievements.  He was serving in Iraq when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record is void of the complete facts and circumstances concerning the events which led to the discharge from the Army to include the unit commander's notification memorandum, the applicant election of rights memorandum, and the unit commander's recommendation memorandum.  However, the record does contain the intermediate commander's recommendation and the separation authority's approval memorandum.

2.  On 21 July 2009, intermediate commander reviewed the proposed action and recommended that the separation action pertaining to the applicant under the provision of Chapter 14, paragraph 14-12b, AR 635-200 for several incidents of misconduct be approved and that the applicant receive a general, under honorable conditions discharge.  

3.  The record indicates that the Command Judge Advocate reviewed the proposed recommendation for separation against the applicant under the provision of Chapter 14, paragraph 14-12b, AR 635-200 for a pattern of misconduct and found it legally sufficient.

4.  On 23 July 2009, 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 13 September 2009, 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, with a Separation Program Designator code (SPD) of JKA 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:

The applicant’s available record does not show any recorded actions under the UCMJ.  However, the applicant achieved the rank of SPC/E-4 and at the time of discharge his DD Form 214 indicates the rank of PVT/E-1.  The actions that caused his reduction in rank are not contained in the service record.



EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293 and DD Form 149, memorandums, dated 31 July 2009 (3) and 11 August 2009, a copy of his Army National Guard Retirement Points History Statement and his NGB Form 22 for the period 26 January 2007 to 14 August 2009, and a copy of the DD Form 214 for the period of service under review.

POST-SERVICE ACTIVITY: 

None were provided 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 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 applicant’s record is void of the complete facts and circumstances concerning the events which led to his discharge from the Army.  However, the record contains the immediate commander's recommendation; indicating his recommendation was based on the applicant committing several incidents of misconduct, command judge advocate, and the approving authority's memorandums.  These documents identify the reason and characterization of the discharge and government regularity is presumed in the discharge process.  

3.  Based on the documents found in the record it appears 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.  

4.  The applicant also requested his narrative reason for discharge be changed.  However, Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, for a pattern of misconduct.  The regulation further stipulates that no deviation is authorized.  

5.  The applicant contends he was unjustly discharged and unfairly treated.  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 contentions.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged or unfairly treated.  The applicant’s statement alone does not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.

6.  Furthermore, 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.

7.  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: Personal Appearance	Date: 23 September 2013   Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel: No

In addition to the evidence in the record, the Board carefully considered the additional documents and testimony presented by the applicant at the personal appearance hearing.

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)		AR20130004610



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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