IN THE CASE OF:	

      BOARD DATE:  	16 October 2013

      CASE NUMBER:  	AR20130005914
___________________________________________________________________________

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

2.  The applicant states, in effect, when he obtained all the military bearing, it brought him up to an E-4 status.  He conducted himself as a well-mannered Soldier; however, issues relating to his household led him to his current discharge.  He served a tour in Afghanistan as a 92 Alpha Supply Specialist, and had a second MOS as 92 Golf.  He absolutely loved both jobs.  He earned numerous medals and awards and enjoyed his tour.  He would love to have the chance and opportunity to serve in his country again. Obtaining benefits to pursue his education at a community college is difficult with a general, under honorable conditions discharge.  He learned as an adult that you can’t really pursue anything without a degree.  He is pursuing a degree; however, it has been very hard not being able to obtain his benefits, i.e., Montgomery and/or Post 9-11 GI Bill without an honorable discharge.  

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	21 March 2013 
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	1 August 2011 
	d.	Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Paragraph 14-
			12b, JKA, RE-3
	e.	Unit of assignment:	Echo Company, 1st Attack Reconnaissance Battalion
			82nd Combat Aviation Brigade, Fort Bragg, NC
	f.	Current Enlistment Date/Term:	7 October 2010, 4 years 
	g.	Current Enlistment Service:	0 years, 9 months, 25 days 
	h.	Total Service:	2 years, 10 months, 21 days 
	i.	Time Lost:	None 
	j.	Previous Discharges:	RA (080911-101006) / HD
	k.	Highest Grade Achieved:	E-4 
	l.	Military Occupational Specialty:	92A10, Automated Logistical 
	m.	GT Score:	92 
	n.	Education:	GED 
	o.	Overseas Service:	SWA 
	p.	Combat Service:	Afghanistan (090505-100424) 
	q.	Decorations/Awards:	ARCOM; NDSM; GWOTSM; ASR; NATO MDL 
			MUC
	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 11 September 2008, and reenlisted on 7 October 2010, for a period of 4 years.  He was 20 years old at the time of entry and had a high school equivalency (GED).  He served in Afghanistan.  He earned an ARCOM.  He completed 2 years, 10 months, and 21 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 25 May 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct, specifically for the following offenses:  

	1.	failing to report to his appointed place of duty, to wit: 0630 PT and accountability formation (100722),
	2.	disobeying a lawful order given by 1SG E, when he was instructed to report to the company arm’s room no later than 0400 (100804),
	3.	failing to report to his appointed place of duty, to wit: 0630 PT and accountability formation (100816), 
	4.	failing to report to his appointed place of duty, to wit: 0630 PT and accountability formation (101115),
	5.	failing to report to his appointed place of duty, to wit: 0630 PT and accountability (101223),
	6.	assaulting Ms. R by pushing and grabbing her wrists with his hand (110326),
	7.	assaulting Ms. R by pointing at her a dangerous weapon likely to produce death or grievous bodily harm, to wit: a hand gun (090421),
	8.	communicating a threat to Ms. R, to wit: “Keep fucking with me and I am gonna (sic) shoot your ass,” or words to that effect (090421),
	9.	assaulting Ms. R by grabbing and holding her from behind with his hands (100720),
	10.  assaulting Ms. R by scratching her on the right side of her chest (100720),
	11.  assaulting Ms. R by grabbing her wig with his hands (101104),
	12.  communicating a threat to Ms. R, to wit: “If you ever call him again, I will break every bone in your body,” or words to that effect” (101104),
	13.  displaying insubordinate behavior towards a commissioned officer (110330), and
	14.  failing to report to his appointed place of duty, to wit: 0630 PT and accountability formation (110413).

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 26 May 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action and elected to submit a statement on his own behalf; however, no statement was submitted.  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 30 June 2011, the separation authority directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was discharged from the Army on 1 August 2011, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for pattern of misconduct, a Separation Program Designator code (SPD) of JKA 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 14 March 2011, assault on 5 occasions (090326, 090421, 100720 x 2, 101104), communicating a threat on 2 occasions (090421, 101104).  The punishment consisted of reduction to the grade of E-2, forfeiture of $822 per month for two months, 45 days of extra duty, (FG). 

2.  Seventeen negative counseling statements, dated between 2 September 2009 and 13 April 2011, for disobeying orders, improper financial management, showing up to work late, missing formations, repetitive domestic violence incidents and Lautenberg Amendment Act requirements; failing to be prepared for Warrior Leaders Course; failing to maintain accountability of ID tags during inspection; neglecting to give advance notice on court date; being indebted and failing to make payments; failing to inform chain of command of domestic violence incidents; and being insubordinate toward a commissioned officer.
      
3.  Four Civilian Police Incident/Investigation Reports, dated between 21 April 2009 and 22 March 2011, which indicate the applicant was the subject of investigations for simple assaults, aggravated assault, and domestic violence incidents.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided no further evidence.

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

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 unit commander’s notification memorandum dated 25 May 2011, contained offenses the applicant committed in a prior period of service.  Specifically, it related to offenses occurring between 21 April 2009 and 16 August 2010; the Article 15, dated 14 March 2011, that included offenses occurring between 26 March 2009 and 20 July 2010; and numerous counseling statements the applicant received between 2 September 2009 and 16 August 2010.  The government’s presumption of regularity may not be applied in this case because the command used misconduct from a previous enlistment and the separation authority did not specifically state the earlier misconduct was not considered for the purpose of characterization.  Army Regulation 635-200 specifically requires the separation authority to state on the record that the misconduct from a previous enlistment was not considered for the purpose of characterization, the absence of such a statement makes the record irregular and the Army Discharge Review Board must consider this as an issue of fact when determining the applicant’s characterization of service.  

5.  However, the applicant’s period of service under consideration was marred by various acts as reflected in record of nonjudicial punishment UP Article 15, UCMJ, and negative counseling statements that justified the characterization of service awarded.  Therefore, even if the separation authority considered incidents from an earlier period of service in determining the characterization for the period under consideration, it was a harmless error. The record does not contain any evidence of arbitrary or capricious actions by the command and it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

6.  The applicant contends that he had good service which included a tour in Afghanistan and attaining E-4 rank.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the repeated incidents of misconduct or by the multiple negative counseling statements and the documented action under Article 15 of the Uniform Code of Military Justice.

7.  The applicant has expressed his desire to have the opportunity to serve again, and to have better job opportunities and the benefits of the GI Bill.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  Further, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

8.  In addition, regarding his desire for an opportunity to serve again, Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  Based on Army Regulation 635-5-1 and the SPD Code/RE Code Cross Reference Table the applicant was appropriately assigned an RE code of 3.  There are no basis upon which to grant a change to the reason or to the RE code.  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.

9.  Furthermore, the applicant contends that he was having family issues that affected his behavior and ultimately caused him to be discharged.  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.  

10.  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:  16 October 2013       Location: Washington, DC

Did the Applicant Testify?  No 

Counsel:  None

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:		No Change
Change RE Code to:			No Change
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)		AR20130005914

Page 2 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1