IN THE CASE OF:  	Mr. 

      BOARD DATE:  	4 September 2013

      CASE NUMBER:  	AR20130005161
___________________________________________________________________________

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 fully honorable.

2.  The applicant states, in effect, he believes his discharge should be changed due to the fact he was not given the chance of a rehabilitation move.  He was informed by the JAG officer that he should have been offered that chance.  Not excusing his behavior, he believes he was constantly put in a position where he had to work with the NCO that was, for lack of better terms, instigating him during a period of divorce and custody battles.  He was not treated, in his opinion, with the proper consideration of the issues he was facing in his personal life.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		12 March 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			13 April 2012
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14-12b, 						JKA, RE-3
e. Unit of assignment:			FSC, 1-32 CAV Regt, Fort Campbell, KY
f. Current Enlistment Date/Term:	26 April 2007, 5 years, 24 weeks
g. Current Enlistment Service:	4 year, 11 months, 18 days
h. Total Service:			4 year, 11 months, 18 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	91B10, Wheel Vehicle Mechanic
m. GT Score:				111
n. Education:				GED
o. Overseas Service:			SWA x 2
p. Combat Service:			Iraq (071228-081112) and Afghanistan (100508-						110507)
q. Decorations/Awards:		ARCOM, AAM-2, AGCM, NDSM, ACM-w/CS, ICM-						w/CS, GWOTSM, ASR, OSR-2, NM, CAB
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes	
u. Prior Board Review:			No








SUMMARY OF SERVICE:		
	
The applicant's record shows he enlisted in the Regular Army on 26 April 2007 for a period of 
5 years and 24 weeks.  He was 18 years old at the time and had a high school equivalency (GED).  He was serving at Fort Campbell, KY, when his discharge was initiated.  He was awarded an ARCOM, two AAMs, an AGCM, and a CAB.

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 27 March 2012, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct; specifically for:

a.  failing to follow a direct order twice from SSG K to have his uniform to the standards set forth in policy letter #2 (110918 and 110919). 

b.  using disrespectful language towards SSG W by calling him garbage and he had no respect for him and never will respect him, “I don’t like you, you have a male complex you need to look at yourself’, “go fuck yourself’, “I don’t give a fuck”, “I’m getting out in three months anyway” (111031). 

c.  failing to report three times  (111123, 111123, and 111128).

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 4 April 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, 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 5 April 2012, 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 on 13 April 2012, under the provisions of 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.  The applicant's disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

a.  On 18 October 2011, for failing to follow a direct order twice from SSG K (110918 and 110919).  His punishment consisted of reduction to E-3 and 14 days of extra duty (CG).

b.  On 2 February 2012, for using disrespectful language towards SSG W (111031) and  
failing to report three times (111123, 111123, and 111128).  The punishment imposed consisted of reduction to E-1 (suspended), forfeiture of pay in the amount of $745.00 (suspended), and 45 days of extra duty and restriction (FG).

2.  There are numerous negative counseling statements covering the period 23 August 2011 through 28 February 2012, for seat belt violation, driving with a suspended license, failures to report, disrespect to a NCO, disruption at physical training, uniform violations, performance counseling, making a verbal threat towards a NCO, failure to follow an order from a NCO, and notification of intent to separate from the Army.

EVIDENCE SUBMITTED BY THE APPLICANT 

An online DD Form 293 and a DD Form 214.

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 and the issues submitted with the application, there are insufficient 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 repeated 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 two Articles 15 for multiple violations of the Uniform Code of Military Justice and several negative counseling statements.

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 he believes his discharge should be changed due to the fact he was not given the chance of a rehabilitation move.  He was informed by the JAG officer that he should have been offered that chance.  However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  

5.  The applicant contends he was constantly put in a position where he had to work with a  NCO who was constantly instigating him during a period of divorce and custody battles; however, 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.  Accordingly, this argument is not sufficient to support his request for an upgrade of his discharge.

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

8.  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:  4 September 2013      Location: Washington, DC

Did the Applicant Testify?  No

Counsel: None

Witnesses/Observers: NA

Board Vote:
Character  	Change:  1	No Change:  4
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)		AR20130005161



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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