IN THE CASE OF:  Mr. 

      BOARD DATE:  	6 November 2013

      CASE NUMBER:  	AR20130006642
___________________________________________________________________________

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 that the characterization of service was too harsh based on the applicant’s immaturity at the time of enlistment and his inability to perform as a Soldier.  The record also shows the applicant's discrediting entries were incidents of a minor nature.  While the applicant's misconduct and poor duty performance were a clear departure from acceptable Army standards, it appears the offenses were partially mitigated by immaturity.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to general, under honorable conditions. The Board determined the reason for discharge was proper and equitable and voted not to change it.  



      
      
      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 under other than honorable conditions to honorable.

2.  The applicant states, in effect, that he would like an upgrade of his discharge for the purpose of being able to reenlist.  He contends he was discharged unwillingly and that he was discharged after being treated poorly by his drill sergeant who urinated on his hand.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 April 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			29 November 2006
d. Reason/Authority/SPD/RE:		Misconduct (AWOL), AR 635-200, Chapter 14 							paragraph 14-12c(1), JKD, RE-3
e. Unit of assignment:			Sp Proc Co, USA Pers Con Fac, Fort Knox, KY
f. Current Enlistment Date/Term:	29 December 2005, 3 years and 19 weeks
g. Current Enlistment Service:	0 years, 9 months, 25 days
h. Total Service:			0 years, 9 months, 25 days
i. Time Lost:				35 days
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	None
m. GT Score:				94
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:		None
u. Prior Board Review:			No
SUMMARY OF SERVICE:	

The applicant enlisted in the Regular Army on 29 December 2005, for a period of 3 years and 19 weeks.  He was 19 years old at the time of entry and had a high school equivalency (GED).  He was serving at Fort Knox, KY when his discharge was initiated.  The record does not contain any evidence of acts of valor or meritorious achievements.  



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 20 July 2006, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, Section III, paragraph 14-12c(1), AR 635-200, by reason misconduct (serious offense) for going AWOL x 2 (060416-060427 and 060616-060711)

2.  Based on the above misconduct, the unit commander recommended an under other than honorable conditions discharge and advised the applicant of his rights.

3.  On 20 July 2006, the applicant consulted with legal counsel, was advised of the impact of the discharge action, voluntarily waived consideration of his case by an administrative separation board and indicated his intentions to submit a statement on his behalf which was not found in the record.  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 an under other than honorable conditions discharge.  

4.  On 7 November 2006, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.

5.  The applicant was discharged from the Army on 29 November 2006, with a characterization of service of under other than honorable conditions under the provisions of Chapter 14, paragraph 14-12c(1), AR 635-200, for misconduct (AWOL), with a Separation Program Designator code (SPD) of JKD and an RE code of 3. 

6.  The applicant's record of service indicates 35 days of time lost as a result of going AWOL   x 2; 16 April 2006 until his return on 26 April 2006 and 16 June 2006 until his return on             10 July 2006.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, imposed on 11 April 2006, for going AWOL (060417-060427).  The punishment consisted of forfeiture of $333.00 and extra duty and restriction for 14 days (CG).  

2.  Four DA Form 4187's (Personnel Action ) which indicated change of duty status changes: PDY-AWOL 16 April 2006, AWOL-PDY 27 April 2006, PDY-AWOL 16 June 2006, and DFR-PDY 11July 2006.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 149 and a DD Form 293.



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.  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, the documents 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 misconduct, the applicant diminished the quality his service below that meriting an honorable discharge.  The applicant’s record of service was marred by his Article 15 for violation of the Uniform Code of Military Justice and his two periods of AWOL.


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 he was discharge unwillingly and that he was treated poorly by his drill sergeant.  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.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was treated poorly or that he was unwillingly discharged.  In fact, the applicant’s Article 15 and two periods of AWOL justify him being discharged for 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 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.

6.  The applicant expressed his desire to reenlist.  However, 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. 

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:  6 November 2013      Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: None

Witnesses/Observers:  NA 

Board Vote:
Character Change:  5	No Change:  0
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	General, Under Honorable Conditions
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)		AR20130006642



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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