IN THE CASE OF:  	

      BOARD DATE:  	28 August 2013

      CASE NUMBER:  	AR20130004714
___________________________________________________________________________

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 from general, under honorable conditions to honorable.

2.  The applicant states, in effect, his unit attempted to discharge him twice for homosexuality.  When his unit was unable to discharge him they harassed him with unjust Articles 15; it is only just he be granted an honorable discharge since his only “crime” was serving as a gay Soldier.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date 		4 March 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			23 September 2004
d. Reason/Authority/SPD/RE Code:	Misconduct , AR 635-200, Chapter 14, 								paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			HSC, 92nd Engineer Combat Battalion (Heavy) 						Fort Stewart, GA
f. Current Enlistment Date/Term:	4 June 2002, 6 years
g. Current Enlistment Service:	2 years, 3 months, 20 days
h. Total Service:			2 years, 3 months, 20 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	92F10 H7, Petroleum Supply Specialist
m. GT Score:				108
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (030407-030725)
q. Decorations/Awards:		NDSM, GWOTEM, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 4 June 2002, for a period of 6 years.  He was 17 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 92F10 H7, Petroleum Supply Specialist.  His record shows he served a combat tour but did not earn any award for acts of valor or meritorious achievements and he achieved the rank of PFC/E-3.  He was serving at Fort Stewart, GA, when his discharge was initiated.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 30 August 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of a pattern of misconduct for the following offense of receiving four Articles 15 since May 2003.

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.

3.  On 8 September 2004, the applicant waived his right to consult with legal counsel (although the record shows he consulted with legal counsel), was advised of the impact of the discharge action, and submitted 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.  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’s service record does not contain any evidence of unauthorized absences or time lost.  

6  The applicant was discharged from the Army on 23 September 2004, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for misconduct, a Separation Program Designator code (SPD) of JKA and an RE code of 3.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 27 May 2003 for willfully disobeying a lawful order from CPT W to remain in the proper uniform outside the battalion area (030526); the punishment consisted of extra duty for 14 days, (Summarized).

2.  An Article 15, dated 1 August 2003 for being derelict in the performance of his duties by willfully failing to report an accident before leaving the scene (030713); the punishment consisted of a formal letter of apology, fix vehicle, conduct a class on proper ground guide procedures, and extra duty for 11 days, (Summarized).

3.  An Article 15, dated 9 June 2004 for without authority, failing to go at the time prescribed to his appointed place of duty (031107); disobeying a lawful order from a MSG (040325); treating a MSG with contempt (040325); being derelict in performing his duties x 2 by failing to complete a task from (040205-040228) and failing to clean his section’s weapons prior to being released (040318); the punishment consisted of reduction to E-2, forfeiture of $300 pay x 1 month, extra duty for 14 days and restriction for 14 days, (CG).

4.  An Article 15, dated 26 July 2004, the continuation sheet is not contained in the available record; the punishment consisted of reduction to E-1, forfeiture of $596 pay x 2 months (suspended), extra duty for 30 and restriction for 30 days, (FG).

5.  He received 11 negative counseling statements which were completed between 25 May 2003 and 30 July 2004, for being out of uniform, fleeing the scene of an accident, failing to report on numerous occasions, failing to complete a tasking, disobeying a lawful order on divers occasions, disrespecting a senior NCO and being recommended for separation action under Chapter 14-12b.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293; Congressional Documents, six pages, DD Form 214; and Discharge Orders 264-0013, and Amended Discharge Orders 267-0018.

POST-SERVICE ACTIVITY: 

The applicant did not provide any 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 his military record, the issues and document 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.  The applicant’s record of service was marred by four Articles 15 and 11 negative/performance counseling statements.

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 unit attempted to discharge him twice for homosexuality.  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 this contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention his unit attempted to discharge him for homosexuality.

5.  The applicant further contends when his unit was unable to discharge him they harassed him with unjust Articles 15; it is only just he be granted an honorable discharge since his only “crime” was serving as a gay Soldier.  However, the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicant’s numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline which justified a pattern of misconduct.  

6.  Also, 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.  

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:  Records Review         Date:  28 August 2013        Location:  Washington, DC

Did the Applicant Testify:  No

Counsel:  Yes

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)		AR20130004714



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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