IN THE CASE OF:  	

      BOARD DATE:  	7 August 2013

      CASE NUMBER:  	AR20130005102
___________________________________________________________________________

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.  He states, in effect, he desires to receive VA benefits to attend school and increase his value in the job market.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		11 March 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			16 December 2011
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			K Battery, 3 29th Field Artillery Bn, Fort Carson, CO
f. Current Enlistment Date/Term:	29 May 2008, 5 years
g. Current Enlistment Service:	3 years, 6 months, 18 days 
h. Total Service:			5 years, 4 months, 29 days
i. Lost time:				None
j. Previous Discharges:		RA-(060718-080528)/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	13D10, Field Artillery Automation
m. GT Score:				94
n. Education:				GED Certificate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (080310-090315)
q. Decorations/Awards:		ARCOM, AGCM, NDSM, ICM-W/2 CS, GWOTSM 						ASR, OSR
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 18 July 2006, for a period of 3 years and 19 weeks.  He was 18 years old at the time with a GED Certificate.  He was trained in and awarded military occupational specialty (MOS) 13D10, Field Artillery Automation.  He reenlisted on 29 May 2008, for 5 years and was 20 years old at the time.  His record also shows he served a combat tour and earned several awards including an ARCOM and AGCM.  He was serving at Fort Carson, CO, when his discharge was initiated.  He achieved the rank of    SPC/E-4.  



SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence contained in the applicant’s service record indicates that on 1 December 2011, 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.  disrespecting two noncommissioned officers and a senior noncommissioned officer (111028)

b.  assaulting two noncommissioned officers and a senior noncommissioned officer (111028)

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 1 December 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, waived consideration of his case by an administrative separation board (although he was not entitled to a 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 7 December 2011, 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 record of service does not contain any documented evidence of unauthorized absences, lost time or any actions under the Uniform Code of Military Justice (UCMJ).

6.  The applicant was discharged from the Army on 16 December 2011, with a characterization of service of general, under 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. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record contains a Military Police Report, dated 28 October 2011 which indicated the applicant was under investigation for assaulting an NCO.

2.  The record of evidence also contains a negative counseling statement, dated 28 October 2011 for physically assaulting two senior noncommissioned officers and a junior noncommissioned officer.


EVIDENCE SUBMITTED BY THE APPLICANT:  

The applicant provided a DD Form 293; DD Form 214; and Discharge Orders 343-0008.

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 records, the issues and documents 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 a Military Police Report and a negative counseling statement.
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 desires to receive VA benefits to attend school and increase his value in the job market.  However, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

5.  Further, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities

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:  Record Review        Date:  7 August 2013            Location:  Washington, DC

Did the Applicant Testify:  No

Counsel:  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:			No Change
Grade Restoration to:			NA
Change Authority for Separation:		No Change
Other:						No Change






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)		AR20130005102



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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