IN THE CASE OF:  	Mr. 

      BOARD DATE:  	25 October 2013

      CASE NUMBER:  	AR20130005316
___________________________________________________________________________

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 uncharacterized discharge.

2.  The applicant states, in effect, that he was abused and intimidated during his stay at Fort Benning.  He was intimidated into signing an Article 15.  He was completely innocent and received another Article 15 shortly afterwards.  The second Article 15 was delayed and eventually he was forced to sign it.  This was a ploy to get him kicked out of the Army.  There were documents that were destroyed by his chain of command.  There were procedures that were not followed.  He attempted to go to the IG but they pushed his allegations under the rug, although he had documentation to raise a concern.  He was not given a fair court martial, considering the evidence that was provided.  In addition, during his court-martial he made three motions to dismiss the proceedings; however, the trial proceeded.  It is his intent to prevent any such cases from occurring again.  The applicant listed in chronological order the perceived injustices in a 14 page statement, to include personal letters and email correspondence.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		13 March 2013
b. Discharge received:			Uncharacterized
c. Date of Discharge:			30 August 2012
d. Reason/Authority/SPD/RE:		Entry Level Performance and Conduct, Chapter 11 						AR 635-200, JGA, RE-3
e. Unit of assignment:			E Company, 2d Battalion, 19th Infantry Regiment 						Fort Benning, GA
f. Current Enlistment Date/Term:  	2 April 2012, 3 years, 16 weeks
g. Current Enlistment Service:  	0 years, 4 months, 29 days
h. Total Service:			0 years, 4 months, 29 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-1
l. Military Occupational Specialty:	None
m. GT Score:				115
n. Education:				GED
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		None
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 Regular Army on 2 April 2012, for a period of 3 years and 16 weeks.  He was 19 years old at the time and had a high school equivalency (GED).  He was attending basic training at Fort Benning, GA when his separation was initiated.

SEPARATION FACTS AND CIRCUMSTANCES

1.  The evidence of record shows that on 20 August 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 11, AR 635-200, by reason of entry level performance and conduct; specifically for:

	a.  disobeying the lawful order of a NCO (120525)
	b.  using provoking speech towards another Soldier (120603) 
	c.  violating the battalion commander’s policy by having an unauthorized item in
	     his possession (120816) 
	d.  demonstrating conduct that he couldn’t adapt to the military environment

2.  The unit commander recommended the applicant’s separation from the Army with an uncharacterized discharge and advised of his rights.

3.  On 20 August 2012, the applicant requested legal counsel, was advised of the impact of the discharge action, and submitted a statement on his behalf.  The unit commander subsequently recommended the applicant’s discharge and waiver of further rehabilitative efforts.  

4.  On 23 August 2012, the separation authority waived further rehabilitation and directed the applicant’s separation from the Army with an uncharacterized discharge.

5.  The applicant was separated from the Army on 30 August 2012, with an uncharacterized discharge.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  Numerous counseling statements covering the period 16 May 2012 through 20 August 2012, for failing to demonstrate the Army values, a request to recycle/restart, possessing unauthorized items, conducting insubordinate conduct towards a warrant officer, NCO or petty officer, non-complying with procedural rules, failing to obey an order, failing to follow instructions, and violating the Army values. 

2.  On 6 June 2012, the applicant received a Company Grade (CG) Article 15, for disobeying a direct order from an NCO (120525).  The punishment imposed consisted of a reduction to E-1. 

3.  On 27 July 2012, the applicant also received a summary court-martial for the following charges:

	a.  Charge I:  Article 117, the specification stated on or about 3 June 2012, the applicant wrongfully used provoking words towards PVT J. 

	b.   Charge ll:  Article 134, the specification stated on or about 3 June 2012, the applicant wrongfully make a vulgar and derogatory statement towards PVT J.  His punishment consisted of a forfeiture of $689.00.

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided an online DD Form 293, text/timeline of daily events from voice recordings (14 pages), numerous email correspondence, counseling statements and AMHRR documents. 

POST-SERVICE ACTIVITY: 

None provided with the application.

REGULATORY AUTHORITY  

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-9 contains guidance on entry level separations.  It states a separation will be described as entry-level with service uncharacterized if, at the time separation action is initiated, the Soldier has less than 180 days of continuous active duty service.

2.  Chapter 11 of Army Regulation 635-200 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry level status (ELS).  An uncharacterized service description is normally granted to Soldiers separating under this chapter.  

3.  An honorable discharge may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.

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 and the issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the uncharacterized description of service accurately reflects the applicant’s overall record of service.  An uncharacterized discharge is neither positive nor negative and it is not meant to be a negative reflection of a Soldier’s military service.  It merely means the Soldier has not been in the Army long enough for the character of service to be rated as honorable or otherwise.  

3.  The separation authority approved the applicant's discharge as entry-level status, with the description of service as uncharacterized.  Army Regulation 635-200 provides in pertinent part, that a Soldier is in entry-level status for the first 180 days of continuous active duty.  The purpose of the entry-level status is to provide the Soldier a probationary period.  Soldiers who are found to lack the necessary motivation, adaptability, self-discipline, ability, or attitude to become productive Soldiers may be expeditiously separated while in entry-level status.  The Regulation also provides, except in cases of serious misconduct, that a Soldier’s service will be uncharacterized when the separation is initiated while the Soldier is in entry level status.  

4.  The applicant requests an upgrade of his discharge to honorable.  However, an honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct or performance of duty.  The applicant’s service record indicates no such unusual circumstances were present and did not warrant an honorable characterization.  

5.  The applicant contends he was abused and intimidated during his stay at Fort Benning.  He was intimidated into signing Article 15s, harassed by the drill sergeants, his personal mail was tampered with or not mailed out, and was not given his due process when he filed an IG complaint or met with JAG.  All of the applicant’s contentions were noted to include the numerous letters and email correspondence; 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 these issues.  There is no evidence in the record, nor has the applicant produced any conclusive evidence to support the contention that he was unjustly discriminated, harassed, abused, mail tampered with, or not allowed his due process.  In fact, the applicant’s Article 15, summary court-martial, and numerous negative counseling statements justify a pattern 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.   

6.  In addition, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

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.  Lastly, the records show the proper discharge and separation authority procedures were followed in this case.  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:  25 October 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)		AR20130005316

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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