IN THE CASE OF:  	Mr. 

      BOARD DATE:  	27 September 2013

      CASE NUMBER:  	AR20130005583
___________________________________________________________________________

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 honorable.

2.  He states, in effect, that all the charges against him were dropped.  He requests reinstatement to active duty at his present rank and be allowed to continue serving as he had planned.  He feels he was unjustly discharged and would like to prove his status as a Soldier in the Army. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		18 March 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			13 October 2011
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 							Chapter 14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			Headquarters, 2-12th Cavalry Regiment (Rear) 						(Provisional), Fort Hood, TX
f. Current Enlistment Date/Term:	3 November 2009, 3 years and 28 weeks
g. Current Enlistment Service:	1 year, 11 months, 11 days 
h. Total Service:			1 year, 11 months, 11 days
i. Lost time:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	91H10, Track Vehicle Repairer
m. GT Score:				84
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (100919-110103)
q. Decorations/Awards:		NDSM, ICM-W/CS, GWOTSM, ASR, OSR
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 3 November 2009, for a period of 3 years and 28 weeks.  He was 22 years old at the time and a HS Graduate.  He was trained in and awarded military occupational specialty (MOS) 91H10, Track Vehicle Repairer.  His record shows that he served a combat tour, but did not earn any awards for acts of valor or meritorious achievements and he achieved the rank of PFC/E-3.  He was serving at Fort Hood, TX when his discharge was initiated.


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 22 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 of misconduct-commission of a serious offense.  Specifically for the following offenses:

     	a.  being involved in a physical altercation with his spouse (110109)

b.  being arrested by the Killeen Police Department and charged with assault and bodily injury to a family member (110109)

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 23 September 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not 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 the separation with a general, under honorable conditions discharge.  

4.  On 27 September 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’s record of service does not contain any documented evidence of unauthorized absences, lost time or actions under the Uniform Code of Military Justice (UCMJ).

6.  The applicant was discharged from the Army on 13 October 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. 

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  The record of evidence contains a Mental Status Evaluation, dated 4 August 2011 which indicate the applicant was psychiatrically cleared to proceed with the chapter process.

2.  The record of evidence also contains three negative counseling statements, dated 
11 January 2011, 12 January 2011, and 28 July 2011 for conditions on being released from jail, violating a no contact order and being recommended for a Chapter 14 separation.

3.  Police and court documents from Killeen, Texas and Bell County, Texas
including an arrest report and report of investigation dated 9 January 20011
and an illegibly dated document citing the State's inability to obtain a
conviction for the arresting offense due to the State's inability to locate
a witness.

4.  A General Officer Memorandum of reprimand dated 26 July 2011, for physically assaulting his spouse.

EVIDENCE SUBMITTED BY THE APPLICANT:  

The applicant provided a DD Form 149, Bell County Texas Court Documents, a Memorandum for Record, regarding applicant’s discharge, handwritten support statement, two pages, Memorandum, response to administrative reprimand, two pages, Killeen Police Department Arrest Report, and a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant did not provide any 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, the issues and documents 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 misconduct, the applicant diminished the quality his service below that meriting a fully honorable discharge.  The applicant’s record of service was marred by three negative counseling statements, a Killeen Police Department Arrest Report and Bell County Texas Court Documents.

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 that all the charges against him were dropped.  The charges were dropped because the State’s witnesses could not be located.  This does not mean the offense was not committed.  Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when action is taken that is tantamount to a finding of guilty, if a punitive discharge is authorized for the same or a closely related offense under the Manual for Courts Martial.  

5.  The applicant further contends he feels he was unjustly discharged and would like to prove his status as a Soldier in the Army.  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 contention.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discharged.

6.  Further, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  An RE Code of 3 indicates the applicant requires a waiver prior to being allowed to reenlist.   If reenlistment is desired, the applicant should contact a local recruiter to determine eligibility to reenlist.  Recruiters can best advise a former service member as to the needs of the Army at the time, and are required to process waivers of reentry eligibility (RE) codes if appropriate. 

7.  The applicant requests reinstatement to active duty at his present rank and be able to continue serving to establish his time in the Army.  The Army Discharge Review Board is not empowered to reinstate a Soldier to active duty, restore former service member's grade, rate or rank.  The Board may only change the characterization or reason for discharge.  If an applicant believes there is an error or injustice in his discharge, he may make an application to the Army Board for Correction of Military Records, using DD Form 149, which can be obtained online or from a Veterans Service Organization.  

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:  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)		AR20130005583



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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