IN THE CASE OF:  	Mr. 

      BOARD DATE:  	23 August 2013

      CASE NUMBER:  	AR20130005126
___________________________________________________________________________

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, that he was unjustly discharged.  He contends he receive one DUI in January 2012, after returning from deployment; however, he was discharged for receiving two.  He also contends that members of his command appeared at his administrative separation board and spoke on his behalf indicating that he only received the one DUI.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		11 March 2013
b. Discharge received:			General, Under Honorable Conditions
c. Date of Discharge:			10 September 2012
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14, 						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			C Co, 2d Bn, 30th IN, 4th BCT, Fort Polk, LA
f. Current Enlistment Date/Term:  	10 December 2009, 3 years
g. Current Enlistment Service:  	2 years, 9 months, 1 day
h. Total Service:			7 years, 9 months, 1 day
i. Time Lost:				None
j. Previous Discharges:		USMC-040719-090718/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	11B10, Infantryman
m. GT Score:				93
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Afghanistan (101023-111010)
q. Decorations/Awards:		AAM, AGCM, USMCGCM, NDSM, ACM-w/2CS,						GWOTSM, ASR, OSR, NATOMDL, CIB
r. Administrative Separation Board: 	Yes
s. Performance Ratings:		None
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:		

After serving in the United States Marine Corps for 5 years the applicant enlisted in the Regular Army on 10 December 2009, for a period of 4 years.  At the time of enlistment he was 24 years old.  The applicant's record indicates he served in Afghanistan, earned several awards to include an AAM, AGCM and the USMCGCM during a prior period of service.  He completed a total of 7 years, 9 months, and 1 day of total military service.



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 and the applicant's election of rights memorandum and government regularity prevails in the discharge process.  However, the record does contain the unit commander's recommendation memorandum, dated 20 March 2012.  

2.  The recommendation memorandum indicates that separation action was recommended under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct for engaging in a pattern of misconduct between (100810 and 120104).  The unit commander stated in effect that his recommendation was based on the applicant having received at least two convictions for DUI and failing to obey a no contact order.  The applicant also pulled a gun on another Soldier prior to deployment and he was enrolled in ASAP twice.

3.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge.

4.  On 29 March 2012, the intermediate commander reviewed the proposed action and recommended approval with a general, under honorable conditions discharge.  

5.  On 16 August 2012, an administrative separation board convened and the applicant appeared with counsel.  The board recommended the applicant’s discharge with characterization of service of general, under honorable conditions.

6.  On 28 August 2012, the separation authority approved the recommendation of the administrative separation board and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

7.  The applicant was discharged from the Army on 10 September 2012, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for pattern of misconduct, with a Separation Program Designator code (SPD) of JKA and a RE code of 3. 

8.  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 record does not contain any recorded actions under the UCMJ or counseling statements.  However, as noted in the administrative separation board proceedings the applicant received eight counseling statements dated between 29 May 2010 and                    26 January 2012, for receiving traffic citations for DUI in South Carolina and Louisiana, initial counseling, and orientation counseling.


EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, copy of his unofficial 10 year driving record, list of members who appeared at his administrative separation board, copy of a DD Form 214 for a prior period of service, and a copy of his 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 his military records, the documents and issues submitted with the application, there are insufficient mitigating 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 incident of misconduct, the applicant diminished the quality of his service below that meriting an honorable discharge.  His service was marred by the reported incidents of him being arrested and charged with two driving while intoxicated offenses.

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 discharge was unjust because he was discharged for two DUI's when he only received one.  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 issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharge.  In fact, the administrative separation board proceedings show the applicant received traffic citations for DUI offenses, 10 August 2010 and               1 January 2012, and numerous negative counseling statements which justify a pattern of misconduct.  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.   

5.  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.   The character of the applicant’s discharge is commensurate with his overall service record.  

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:  23 August 2013     Location: Washington, DC

Did the Applicant Testify?  NA 

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)		AR20130005126



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1