IN THE CASE OF:  	Mr. 

      BOARD DATE:  	21 August 2013

      CASE NUMBER:  	AR20130005132
___________________________________________________________________________

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.  He states, in effect, he was harassed and racial remarks were directed towards him.  He complained to his chain of command and the EO Representative; no action was taken to curtail the harassment; so he used drugs.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		11 March 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			30 April 2001
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14, 						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			Howitzer Battery, 2-3rd Armor Regiment, 							Fort Carson, CO 					
f. Current Enlistment Date/Term:	10 November 1998, 3 years/with a medical waiver
g. Current Enlistment Service:	2 years, 5 months, 21 days
h. Total Service:			2 years, 5 months, 21 days
i. Lost time:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	13B10, Cannon Crewmember
m. GT Score:				94
n. Education:				HS Graduate
o. Overseas Service:			Korea
p. Combat Service:			None
q. Decorations/Awards:		ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		No
t. Counseling Statements:		No
u. Prior Board Review:			No

SUMMARY OF SERVICE:		

The applicant enlisted in the Regular Army on 10 November 1998, for a period of 3 years.  He was 19 years old at the time of entry and a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 13B10, Cannon Crewmember.  He served in Korea; however, his record does not contain any evidence of acts of valor or meritorious achievements.  He achieved the rank of SPC/E-4.  He was serving at Fort Carson, CO, when his discharge was initiated.  



SEPARATION FACTS AND CIRCUMSTANCES

1.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant’s signature.

2.  The DD Form 214 indicates the applicant was discharged on 1 February 2013 under the provisions of Chapter 14, AR 635-200, paragraph 14-12b, for a pattern of misconduct, with a characterization of service of general, under honorable conditions.  The DD Form 214 shows a Separation Program Designator (SPD) code of JKA and a reentry (RE) code of 3.  

3.  There is no record of any Uniform Code of Military Justice (UCMJ) action, even though the applicant was discharged as a PVT/E-1.  The action that reduced him in rank is not contained in the available record.

4.  The applicant’s service record does not contain any evidence of unauthorized absences or time lost.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

The record does not contain any counseling statements or any other relevant information.

EVIDENCE SUBMITTED BY THE APPLICANT:  

The applicant provided a DD Form 293; DD Form 214; and Discharge Orders 114-0023.

POST-SERVICE ACTIVITY: 

The applicant did not submit any with his 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 available 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 specific facts and circumstances concerning the events which led to his discharge from the Army.  However, the record contains a properly constituted DD Form 214, which was authenticated by the applicant's digital signature.  This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process.  

3.  The DD Form 214 also indicates the applicant was discharged under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct, with a characterization of service of general, under honorable conditions.  Barring evidence to the contrary, the presumption of government regularity prevails and all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant contends he was harassed and racial remarks were directed towards him.  Although the applicant alleges he was a victim of harassment and racism during his military service, there is no evidence in his military records and the applicant has not provided sufficient evidence supporting this contention.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.

5.  The applicant further contends he complained to his chain of command and the EO Representative; no action was taken to curtail the harassment; so he used drugs.  He had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  Likewise, he has provided no evidence that he should not be held responsible for his misconduct.  



6.  Further, 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.  If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record.

8.  Therefore, based on the available evidence and the presumption of government regularity, the reason for discharge and the characterization of service were both proper and equitable, recommend the Board deny relief. 

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Record Review           Date:  21 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)		AR20130005132



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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