IN THE CASE OF:  	Mr. 

      BOARD DATE:  	27 September 2013

      CASE NUMBER:  	AR20130005216
___________________________________________________________________________

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 and is requesting a medical board.

2.  The applicant states, in effect, that he was injured while serving and was pending a medical board.  There was no supporting documentation for his discharge.  He was cleared mentally by a social worker; but not by a physician.  Lastly, he did not know that he had the right to appeal.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		13 March 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			18 January 2005
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, 14-12c, JKQ, RE-3        
e. Unit of assignment:			HHT, 2d Squadron, 3d Armored Cavalry Regiment, 						Fort Carson, CO
f. Enlistment Date/Term:		27 April 2001, 4 years
g. Current Enlistment Service:	3 years, 8 months, 22 days
h. Total Service:			3 years, 8 months, 22 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	91W10, Health Care Specialist
m. GT Score:				100
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (030401-030607 and 031129-040315)
q. Decorations/Awards:		PH, ARCOM w/V (not on DD 214), NDSM, GWOTEM, GWOTSM, 				ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes	
u. Prior Board Review:			No

SUMMARY OF SERVICE:		
	
The applicant enlisted in the US Army on 27 April 2001 for a period of 4 years.  He was 
25 years old at the time and was a high school graduate.  When his discharge proceedings were initiated he was at Fort Carson, CO.  The service record shows the applicant was awarded a PH (not reflected on his DD Form 214).  

SEPARATION FACTS AND CIRCUMSTANCES

1.  The record shows that on 13 December 2004, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct, specifically for being convicted in civilian court of check forgery.

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 14 December 2004, the applicant consulted with legal counsel, was advised of the impact of the discharge action and indicated he would not submit a statement on his own 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 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 was discharged on 18 January 2005, for misconduct (serious offense), under the provisions of AR 635-200, Chapter 14-12c, with an SPD code of JKQ and an RE code of 3.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  A Court Docket from the District Court, El Paso, TX, dated 6 December 2004, pertaining to forgery/check fraud.

2.  One negative counseling dated 6 December 2004, for notification of separation.

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant submitted a DD Form 149; DD Form 214; PH; ARCOM-w/DEV; Mental Status Evaluation, dated 18 November 2004; medical documents; and Department of Veterans Affairs documents, 9 pages

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 the applicant’s service record, the documents and the issue submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The service record confirms 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 his misconduct the applicant diminished the quality of his service below that meriting an honorable discharge.  

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 he should have been medically discharged; however, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  In addition he requests a medical board; however, this does not fall within the purview of this Board.  

5.  The applicant contends there was no supporting documentation for his discharge.  However, the commander’s notification letter shows on 13 December 2004, the applicant was notified of initiation of separation actions for being convicted in a civilian court of check forgery.  Furthermore, the record shows a court docket, dated 6 December 2004, showing he was convicted of forgery/check fraud.  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.  The applicant’s statements alone do 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.   

6.  The applicant contends he was cleared mentally by a social worker; however, not cleared physically.  He provided documents to show the Veterans Administration has granted him a service connected disability for PTSD.  However, this medical condition did not overcome the reason for discharge and characterization of service granted.  The record shows that on 
18 November 2004, the applicant underwent a mental status evaluation which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong.  It appears the applicant’s chain of command determined that the applicant knew the difference between what was right and wrong as indicated by the mental status evaluation.  

7.  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.  

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:  Record Review      Date:  27 September 2013     Location: Washington, DC

Did the Applicant Testify?   NA

Counsel:  None

Witnesses/Observers:  NA

Board Vote:
Character Change:  3	No Change:  2
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	Honorable
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)		AR20130005216



Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1