IN THE CASE OF:	Mr.

      BOARD DATE:  	7 October 2013

      CASE NUMBER:  	AR20130006761
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review, hearing his testimony, and considering the Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the circumstances surrounding the applicant’s discharge and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable.  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 to upgrade the characterization of his service from general, under honorable conditions to fully honorable, and to change the narrative reason for his discharge.

2.  The applicant submits a self-authored statement to provide additional explanation on the circumstances and appropriate reasons to request for an upgrade and change the narrative reason to medical issues.  In pertinent part, he states, in effect, that the reasons for an upgrade are:  (1) The United States of America gave him education, food and shelter and feels it is his duty to protect it.  He was proud being an American Soldier.  He wishes his appeal for justice with the facts and evidence prove that he did his best upholding the oath of his enlistment becoming Soldier.  (2) He strongly feels he was a victim of fault-finding and a biased attitude.  The counseling statements as supporting evidence justify his points.  (3) He proudly served on the special operations team, believing in the American way of life, and risking his and the lives of his family to support the cause for freedom and the global war on terrorism.  He held a secret security clearance while he was a Soldier in the special operations team.  He needs an honorable discharge to secure a good job to support him and his family.  (4) He faced the issues of being careless, inattentive, or lost emotional control, but only the minor patterns of misconduct were considered, and not the abuses he suffered and he still performed his duties honorably as a Soldier.  When he was counseled for carelessly and mistakenly losing his barracks room key, it was his second or third counseling statement since being on active duty and no pattern of misconduct had yet been established.  (5) He always performed his duty with honor and hard work, sacrificed personal gains to serve his nation, and believes it was unjustified to receive a GD and be tagged as a Soldier whose performance is unsatisfactory.  He believes his performance issues were largely a result of an undiagnosed Attention Deficit Disorder.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	5 April 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	10 June 2011
	d.	Reason/Authority/SPD/RE Code:	Unsatisfactory Performance, AR 635-200, Chapter 13, 
			JHJ, RE-3 
	e.	Unit of assignment:	Headquarters Support Company, 4th Military 
			Information Support Battalion (Airborne), Ft Bragg, NC
	f.	Current Enlistment Date/Term:	11 January 2010, 4 years, 25 weeks 
	g.	Current Enlistment Service:	1 year, 5 months
	h.	Total Service:	1 year, 5 months
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-4
	l.	Military Occupational Specialty:	91A10, M1 Abrams Tank System Maintainer
	m.	GT Score:	126 
	n.	Education:	Masters Degree
	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:  

The applicant enlisted in the Regular Army on 11 January 2010, for a period of 4 years and 25 weeks.  He was 26 years old at the time of entry and a college graduate.  He was trained in and awarded military occupational specialty (MOS) 91A10, M1 Abrams Tank System Maintainer.  His record documents no acts of valor or significant achievement.  He completed 1 year and 5 months of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record shows that on 21 April 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 13, AR 635-200, by reason of unsatisfactory performance, specifically for:

a. receiving an Article 15 for three specifications of failing to report to his appointed place of duty (110104, 100804,100816) and failing to obey an order or regulation (100803)
b. being counseled for the following:

(1)	failing to report to his appointed place of duty (100819, 100804,100817, 110131)
(2)	failing to report in proper uniform (100804, 100819, 110107)
(3)	plagiarizing an essay assigned for corrective training (101222)
(4)	failing to clean barracks room and clear billeting (100817) 
(5)	failing a record APFT (100809)
(6)	failing to complete a corrective training, essay by suspense date (100804) 
(7)    failing to shave and have a military haircut (100803)

2.  The unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.  

3.  On 21 April 2011, the applicant waived consulting with legal counsel, indicated he understood the impact of the discharge action, and submitted a statement on his behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  

4.  On 17 May 2011, the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  The applicant was not transferred to the U.S. Army Reserve Control Group.

5.  The applicant was discharged from the Army on 10 June 2011, with a characterization of service of general, under honorable conditions.

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 4 February 2011, failure to report on 3 occasions (110104, 100816, and 100804), disobeyed a lawful regulation (100803).  The punishment consisted of forfeiture of $200 (suspended), 14 days of extra duty and restriction (suspended), (CG). 

2.  22 negative counseling statements dated between 3 August 2010 and 20 April 2011, for showing up late to work and formations; failing to report for training; missing formations; disobeying a regulation; corrective training assignment; failing to be in correct uniform; failing to complete assigned corrective training; failing to clear billeting; and failing the APFT.

3.  Memorandum for Record, dated 20 January 2011, documenting commander’s counseling sessions with the applicant on 19 April 2011.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided with his self-authored statement, the statement he submitted during his separation proceedings; psychiatric medical statement, undated; patient medical report, dated 24 October 2012; applicant’s counseling statements justification; counseling statements, dated 3 August 2010, 4 August 2010 x 3, 9 August 2010, 17 August 2010 x 2, 19 August 2010, 20 December 2010, 7 January 2011, 20 January 2011, 31 January 2011, 20 April 2011; and memorandum, dated 11 August 2010, subject: Security Clearance Determination. 

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 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this Chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  

2.  Army policy states that a general, under honorable conditions discharge is normally considered appropriate; however, an honorable discharge may be granted in meritorious cases.

3.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JHJ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 13, unsatisfactory performance.

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of the characterization of his discharge and change to the narrative reason for his discharge was carefully considered.  However, after examining the applicant’s record of service, his military records, and the documents and issues submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge or a change to the narrative reason for his 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.  By the unsatisfactory performance, the applicant diminished the quality of his service below that meriting an honorable characterization of service.  

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 his discharge was unjust because he was the victim of fault-finding and biased attitude.  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 may have been unjustly discriminated.  In fact, the evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.  The applicant’s Article 15 and numerous 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.  Moreover, the rationale the applicant provided as the basis for what he believes was an unfair discharge is not supportable by the evidence contained in the record and can only be viewed as speculative in nature.

5.  Furthermore, the applicant claims the offenses that caused his discharge were minor in nature.  However, the service record indicates the applicant committed many discrediting offenses, which constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicant’s numerous incidents of misconduct adversely affected the quality of his service, brought discredit on the Army, and were prejudicial to good order and discipline.  

6.  The applicant contends that medical issues contributed to his performance issues that led to his discharge from the Army.  However, a careful review of the entire record reveals that any behavioral health diagnosis during his mental status evaluation did not overcome the reason for discharge and characterization of service granted.  The record shows that on 24 February 2011, the applicant underwent a mental status evaluation which indicates he was mentally responsible, with thought content as clear, and was able to recognize right from wrong.  It appears the applicant’s chain of command determined that he knew the difference between what was right and wrong as indicated by the mental status evaluation.  Moreover, the available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during this discharge processing that would have warranted separation processing through medical channels.

7.  The applicant contends that he had good service which included having a secret security clearance.  The applicant’s service accomplishments and the quality of his service 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.

8.  The applicant contends that an upgrade of his discharge will allow him to obtain better employment.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.

9.  The applicant contends the narrative reason for the discharge should be changed because of his medical issues.  However, the applicant was separated under the provisions of Chapter 13, AR 635-200 with a general, under honorable conditions discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "Unsatisfactory Performance," and the separation code is "JHJ."  Army Regulation 635-5, Separation Documents, governs preparation of the DD Form 214 and dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in tables 2-2 or 2-3 of AR 635-5-1, Separation Program Designator (SPD) Codes.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.

10.  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.  Accordingly, the records show the proper discharge and separation authority procedures were followed in this case.  

11.  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:  Personal Appearance     Date:  7 October 2013     Location: Washington, DC

Did the Applicant Testify?  Yes 

Counsel: None

Witnesses/Observers: Yes, wife.

DOCUMENTS/TESTIMONY PRESENTED DURING PERSONAL APPEARANCE:

The applicant submitted no additional documents or contentions.

In addition to the evidence in the record, the Board carefully considered the testimony presented by the applicant at the personal appearance hearing.

Board Vote:
Character Change:  3	No Change:  2
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:	Honorable
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)		AR20130006761

Page 6 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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