IN THE CASE OF:	

      BOARD DATE:  	18 October 2013

      CASE NUMBER:  	AR20130006045
___________________________________________________________________________

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, he did not know he could appeal his discharge.  He would like to better himself and go to school.  He provided statements to support his contention that his discharge is unjust because he received a FG Article 15 for leaving the gym 10 minutes early in Iraq, and that his NCO punched him in the face while he made everyone else do pushups.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	25 March 2013 
	b.	Discharge Received:	General, Under Honorable Conditions 
	c.	Date of Discharge:	18 December 2009
	d.	Reason/Authority/SPD/RE Code:	Condition, Not a Disability, AR 635-200, Paragraph 
			5-17, JFV, RE-3
	e.	Unit of assignment:	541st Transportation Company, 106th Transportation 
			Battalion, Fort Campbell, KY
	f.	Current Enlistment Date/Term:	15 February 2007, 3 years, 18 weeks
	g.	Current Enlistment Service:	2 years, 10 months, 4 days
	h.	Total Service:	2 years, 10 months, 4 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None 
	k.	Highest Grade Achieved:	E-3
	l.	Military Occupational Specialty:	88M10, Motor Transport Operator
	m.	GT Score:	100
	n.	Education:	GED
	o.	Overseas Service:	SWA
	p.	Combat Service:	Iraq (080426-090725)
	q.	Decorations/Awards:	NDSM; ICM-CS; 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 Regular Army on 15 February 2007, for a period of 3 years and 18 weeks.  He was 24 years old at the time of entry and had a high school equivalency (GED).  He was trained in and awarded military occupational specialty (MOS) 88M10, Motor Transport Operator.  His record documents no acts of valor or significant achievement.  He served in Iraq.  He completed 2 years, 10 months, and 4 days of active duty service.


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 16 November 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 5, paragraph 5-17, AR 635-200, by reason of physical condition, not a disability for being diagnosed by competent medical authority with an adjustment disorder and anxiety.  As it pertained to the characterization of his service, he has been late for duty, violated traffic speeding laws on-post and off-post, and was disrespectful to noncommissioned officers in his chain of command.

2.  The commander recommended an honorable discharge, and advised the applicant of his rights.  

3.  On 19 November 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and submitted a statement in his own behalf.  The unit commander subsequently recommended separation from the Service.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general, under honorable conditions discharge.  

4.  On 3 December 2009, 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 18 December 2009, with a characterization of service of general, under honorable conditions under the provisions of AR 635-200, Paragraph 5-17, for condition, not a disability, a Separation Program Designator code (SPD) of JFV 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.  Summarized Article 15, dated 18 June 2009, disrespect in language toward an NCO (090519).  The record reflects no imposition of punishment; however, the unit commander’s forwarding recommendation indicates 14 days or extra duty and restriction was imposed, (CG).

2.  Article 15, dated 28 June 2008, without authority, he left his appointed place of duty (080602).  The punishment consisted of reduction to the grade of E-2, forfeiture of $700 (suspended), 30 days of extra duty, oral reprimand, (FG).  

3.  Three negative counseling statements, dated between 22 April 2009 and 27 April 2009, for failing to obey the speed limit; failing to use his chain of command; and failing to report to his appointed place of duty.



EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a memorandum, dated 2 July 2008, subject: Field Grade Article 15 Appeal, rendered by a trial defense counsel, and two sworn statements, dated 30 June 2008, rendered by SPC B and PV2 W.

POST-SERVICE ACTIVITY: 

The applicant provided none.  

REGULATORY AUTHORITY:

1.  Army Regulation (AR) 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-17 specifically provides that a Soldier may be separated for other physical or mental conditions not amounting to a disability, which interferes with assignment to or performance of duty and requires that the diagnosis be so severe that the Soldier’s ability to function in the military environment is significantly impaired.  

2.  AR 635-200, paragraph 5-1, states that a Soldier being separated under this paragraph will be awarded a characterization of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status.  

3.  A general, under honorable conditions discharge is normally inappropriate for individuals separated under the provisions of Chapter 5-17 unless properly notified of the specific factors in the service that warrant such characterization.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge was carefully considered.  However, after a careful review of all the available records for the period of enlistment under review, and the issue and documents he submitted, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  A mental status evaluation by competent medical authority diagnosed the applicant with an adjustment disorder with depressed mood.  The unit commander subsequently recommended separation under provisions of AR 635-200, Chapter 5, paragraph 5-17, by reason of other designated physical or mental condition not amounting to a disability with an honorable discharge and informed the applicant as to the specific factors in the service record that would warrant such discharge.  

3.  The record confirms that all the requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant contends the discharge was unjust because he received a FG Article 15 for leaving his appointed place of duty ten minutes early in Iraq, and that his NCO punched him in the face while others did pushups.  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.  The applicant produced insufficient evidence to support the contention that he was unjustly discriminated.  In fact, the applicant’s two Article 15 actions and 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.  

5.  The applicant contends that an upgrade of his discharge would allow educational benefits through the use of the GI Bill.  However, 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.

6.  Therefore, the characterization of service and reason for discharge being both proper and equitable, recommend the Board deny relief.

SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review        Date:  18 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)		AR20130006045

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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