IN THE CASE OF:  	

      BOARD DATE:  	7 October 2013

      CASE NUMBER:  	AR20130006196
___________________________________________________________________________

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 to be 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 from general, under honorable conditions to honorable.

2.  The applicant states, in effect, that he was not given a chance to speak with his commanders before he was separated and felt it was an issue of race more than anything else.  He was only AWOL for 2 weeks while another Soldier was AWOL for 90 days and was allowed to stay in with a slap on the wrist; he believes this was unfair.  He is now enrolled in college and would like to use his educational benefits.  He regrets the decisions he made that led to his discharge from the Army.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		27 March 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			9 April 2009
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, 14-12c 						JKQ, RE-3        
e. Unit of assignment:			HHC, 5th Bn, 20th IN Rgt, Fort Lewis, WA
f. Enlistment Date/Term:		3 years, 2 weeks 
g. Current Enlistment Service:	1 year, 8 months, 18 days
h. Total Service:			2 years, 6 months, 5 days
i. Time Lost:				10 days 
j. Previous Discharges:		USAR 060925-070712), NA 									IADT (061026-070526), HD
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	42A10, Human Resources Specialist
m. GT Score:				82
n. Education:				HS Graduate
o. Overseas Service:			None
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes	
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
After serving in the US Army Reserve for a brief period, the applicant enlisted in the Regular Army on 12 July 2007, for a period of 3 years and 2 weeks.  He was 18 years old at the time and was a high school graduate.  When his discharge proceedings were initiated he was serving at Fort Lewis, WA.  The record does not show any significant achievements or meritorious awards.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  The record shows that on 26 February 2009, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-5, AR 635-200, for conviction by a civil court and:

      a. Violated AR 25-2 by wrongfully downloading unauthorized software on a government 	computer and disobeyed a lawful order from an NCO (081214)
      
      b. AWOL between 5 January 2009 and 15 January 2009
      
      c. Violated a lawful order from an NCO two times (091220)
      
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 2 March 2009, the applicant consulted with legal counsel, was advised of the impact of the discharge action and did not submit 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 with a general, under honorable conditions discharge.  

4.  On 19 March 2009, the separation authority waived further rehabilitation and directed the applicant’s discharge under the provision of AR 635-200, paragraph 14-12c, for commission of a serious offense, with a characterization of service of general, under honorable conditions.

5.  The applicant was discharged on 9 April 2009, for misconduct (serious offense), under the provisions of AR 635-200, Chapter 14-12c, with an SPD code of JKQ and an RE code of 3.

6.  The applicant’s record shows 10 days of lost time for being AWOL between 5 January 2009 and 14 January 2009.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  Field Grade Article 15 imposed on 19 February 2009, for being AWOL (090105-090114), disobeying a lawful order from an NCO (081214), and failing to obey a lawful general regulation (081113).  His punishment consisted of reduction to the grade of E-1, forfeiture of pay in the amount of $200.00 per month for 2 months (suspended), 45 days of extra duty, 45 days of restriction, and an oral reprimand.  

2.  Six negative counseling’s dated between 13 August 2008 and 20 January 2009, for offenses related to failure to follow instructions, AWOL, unauthorized computer use, disobeying lawful orders from NCOs, and not maintaining personal hygiene.
EVIDENCE SUBMITTED BY THE APPLICANT 

None provided with the application.

POST-SERVICE ACTIVITY: 

On 18 November 2009, the applicant joined the Army National Guard and was discharged on 23 March 2011 with a general, under honorable conditions characterization of service and a reentry code of 4.  The applicant states he is now enrolled in college.

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

2.  The service record confirms 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 his repeated misconduct the applicant diminished the quality his service below that meriting an honorable discharge.  His service was marred by multiple negative counseling statements and a FG Article 15 for serious violations of the Uniform Code of Military Justice.

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 applicant contends that his discharge was based on an issue of race.  However, 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.  

5.  The applicant also contends that another Soldier with a longer period of AWOL than his was allowed to remain 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 states that an upgrade of his discharge would allow him 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.

7.  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:  7 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 RE Code to:			No Change
Grade Restoration to:			NA
Change Authority for Separation:		No Change
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	UOTH - Under Other Than                           			               Honorable
ADRB Case Report and Directive (cont)		AR 20130006196

Page 2 of 6 pages



ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



1