IN THE CASE OF:	Mr.

      BOARD DATE:  	18 September 2013

      CASE NUMBER:  	AR20130005269
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service to include his combat service, and prior honorable characterization of service, and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable.  The Board determined the reason for discharge was proper and equitable and voted not to change it.  




      
      
      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 to upgrade his characterization of service from general, under honorable conditions to fully honorable.  

2.  The applicant states, in effect, his discharge is inequitable because: it was based on one isolated incident in 49 months of service with no other adverse actions; he received his first sergeant’s permission to remove property from a building and another NCO took a 42-inch television from the same location and did not even receive a reprimand; the investigating officer determined he did not commit criminal acts and that he was honest about the incident.  

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	14 March 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	12 December 2011
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200 
			Paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	Co A, 1st Bn, 5th Cav Rgmt, 2nd BCT, 1st Cavalry 
			Division, Iraq
	f.	Current Enlistment Date/Term:	23 April 2009, 6 years
	g.	Current Enlistment Service:	2 years, 7 months, 20 days
	h.	Total Service:	4 years, 0 months, 29 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (071114-090422) / HD
	k.	Highest Grade Achieved:	E-5
	l.	Military Occupational Specialty:	19K10, K4 M1 Armor Crewman
	m.	GT Score:	125
	n.	Education:	HS Graduate
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (090103-091212), (110520-111115)
	q.	Decorations/Awards:	ARCOM-2; AAM; AGCM; NDSM; ICM-2CS 
			GWOTSM; NPDR; ASR; OSR; CAB
	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 14 November 2007, and reenlisted on 23 April 2009, for a period of 6 years.  He was 23 years old at the time of entry and a high school graduate.  He served in Iraq and earned two ARCOMs.  He completed 4 years and 29 days of active duty service.


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 30 September 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 misconduct (serious offense) for unlawfully entering a building, the property of the United States (110812).

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 11 October 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted 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.  On 16 October 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 was discharged from the Army on 12 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. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 10 September 2011, destroying government property, stealing government property x 3, and unlawfully entering a building with an intent to commit a criminal offense (110812).  The punishment consisted of reduction to the grade of E-4, forfeiture of $1,061 per month for two months (one-month forfeiture suspended), 45 days of extra duty, (FG). 

2.  Two negative counseling statements, dated 24 August 2011 and 21 September 2011, for pattern of misconduct and disorderly conduct.

3.  DA Form 1059, Service School Academic Evaluation Report, dated 11 March 2011, indicates the applicant completed the Warrior Leader Course with performance summary as “Exceeded Course Standards.”

4.  An MP Report dated 13 August 2011, that indicates the applicant was the subject of an investigation for housebreaking and damaging government property, and committing larceny of government property.


EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a memorandum, dated 21 August 2011, render by 1LT B and seven sworn statements rendered in August 2011 (by 1SG H, SPC H, SSG R, PFC F, SPC D, and two by the applicant).

POST-SERVICE ACTIVITY: 

The applicant provided none.

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 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 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 serious incident of misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by an Articles 15 for multiple violations of the Uniform Code of Military Justice and negative counseling statements.

3.  The applicant provided insufficient 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 the incident that caused his discharge was the only one in his entire Army career.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The applicant's incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.

5.  The applicant contends that another Soldier with similar offense was not discharged or allowed to stay in the Army.  However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.

6.  The applicant contends his discharge was inequitable because an investigating officer had determined he did not commit criminal acts and that he was honest about the incident.  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 sufficient evidence to support the contention that he may have been unjustly discriminated.  In fact, the applicant’s Article 15 punishment and the negative counseling statements justify the serious incident of misconduct.  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.

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.  Accordingly, the 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:  18 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:	1	No Change:  4
(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)		AR20130005269

Page 2 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1