IN THE CASE OF:  	Mr. 

      BOARD DATE:  	8 May 2013

      CASE NUMBER:  	AR20130004625
___________________________________________________________________________

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 discharge characterization from general, under honorable conditions to honorable.

2.  The applicant states, in effect, that he believes he has suffered enough.  The sergeant major told him to attend a school that he had already completed and he was getting ready to deploy.  Since leaving the Army he has completed his degree but is unable to find a job and would like to reenlist.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		8 March 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			2 February 2007
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14-12b, 						JKA, RE-3
e. Unit of assignment:			Rear Det, 2d Bn, 16th IN Rgt, Fort Richardson, AK
f. Current Enlistment Date/Term:	7 September 2005, 6 years 
g. Current Enlistment Service:	1 year, 4 months, 26 days
h. Total Service:			14 years, 2 months, 17 days
i. Time Lost:				None
j. Previous Discharges:		USN (921116-961115), HD
					USNR (961116-970305), NIF
					ARNG (970306-990430), GD
					USARCG (990501-000130), NIF									RA (000131-030130), HD										USAR (930131-040226), NIF
					RA (040227-050906), HD
k. Highest Grade Achieved:		E-5	
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				101
n. Education:				HS graduate
o. Overseas Service:			SWA, Alaska
p. Combat Service:			Iraq (040617-050617)
q. Decorations/Awards:		ARCOM, NDSM-2, SWASM-BS, GWOTEM, 							GWOTSM, AFSM, NPDR, ASR, OSR, NATO MDL, 						CIB-2, NAVY UNIT COMMENDATION
r. Administrative Separation Board: 	No
s. Performance Ratings:		Yes
t. Counseling Statements:		No	
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant's record shows he served in the Navy and in the Army National Guard before joining the Army.  The record indicates he served two honorable periods in the Regular Army.  His last reenlistment was on 7 September 2005 for a period of 6 years.  He was 32 years old at the time and was a high school graduate.  When his discharge proceedings were initiated he was serving at Fort Riley, KS.  The applicant served a total of 14 years, 2 months and 17 days which included inactive service in the Navy Reserve.  He received several awards which included an ARCOM.  

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 26 October 2006, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, by reason of a pattern of misconduct; specifically for:

      a. receiving a field grade Article 15 (061013) for submitting a falsified DA Form 1059, 	Academic Evaluation Report (AER)
      b. speeding and driving with suspended privileges (060927)
      
2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and informed the applicant of his rights.

3.  On 28 November 2006, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived an administrative separation board conditioned upon him receiving a general, under honorable conditions discharge 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 a general, under honorable conditions discharge.  

4.  On 8 December 2006, 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 separated from the Army on 2 February 2007, under Army Regulation 635-200, Chapter 14-12b, for a pattern of misconduct, with a general, under honorable conditions discharge, an SPD code of JKA and an RE code of 3.

6.  The applicant’s record does not show any time lost.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A field grade Article 15 dated 13 October 2006, for altering an official document with intent to deceive, specifically a DA Form 1059 (AER).  His punishment consisted of reduction to E-4, forfeiture of pay in the amount of $1,009 for two months (suspended), and 45 days of extra duty.

2.  An MP Report dated 27 September 2006 that indicates the applicant was the subject of an investigation for driving with suspended privileges.

3. NCOER for the period of May 2005 through January 2006; the rater assessed him as fully capable and the senior rater as 2/2 for overall performance and potential.

EVIDENCE SUBMITTED BY THE APPLICANT: 

None provided with the application.

POST-SERVICE ACTIVITY: 

The applicant rejoined the Army National Guard on 18 July 2008 and continues to serve to this day.  An NGB Form 22 contained in the record, indicates he served honorably between 18 July 2008 and 17 July 2009.  His record also shows he served honorably when ordered to active duty between 30 August 2011 and 8 September 2012.  

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 his military records and the issues submitted with the application, there are insufficient factors to merit an upgrade of the applicant's discharge.  

2.  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 incidents of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant’s service was marred by a field grade Article 15 for a serious violation of the Uniform Code of Military Justice.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.  

4.  The applicant contends the sergeant major did not understand that he had already attended the course and he did not go because he wanted to spend more time with his family before deploying with his unit.  However, the record indicates the applicant received an Article 15 for altering and submitting a falsified DA Form 1059 (AER).  The applicant’s record contains an AER for the period of 14 November 2005 through 21 November 2005, for attendance at the Warrior Leaders Course that indicates he was dismissed from the course due to a temporary profile.  Moreover, 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 unit commander indicated the applicant had altered an AER for the Warrior Leadership Course to make it appear that he graduated from the course.  The applicant’s statement alone does not overcome the government’s presumption of regularity and he has not provided any documentation or further evidence in support of his request for an upgrade of his discharge.   

5.  The applicant’s 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 further contends that although he has completed his degree, he can’t get a job and would like to rejoin the Army.  The applicant’s post-service accomplishments have been noted.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears these accomplishments did not overcome the reason for discharge and characterization of service granted.  Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  

7.  Moreover, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on AR 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  There are no basis upon which to grant a change to the reason or to the RE code.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.  If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 

8.  Records show the proper discharge and separation authority procedures were followed in this case.

9.  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:  8 May 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 RE Code to:		NA
Grade Restoration to:		NA
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 20130004625

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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