IN THE CASE OF:  	

      BOARD DATE:  	30 October 2013

      CASE NUMBER:  	AR20130007172
___________________________________________________________________________

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

2.  The applicant states, in effect, that he believes his record was unjust because they were closing down the housing facility and the community he was assigned to and that made it difficult for him to get to work.  Also they took his USAREUR license and he could not drive but they let him keep his military license so he could continue to do his job as a medical supply sergeant.  He lived 30 to 45 minutes off post and had to rely on the local bus system to get to work; however, the system was not very reliable after the decision was made to close the community he lived in.  When he reenlisted they wanted him to stay there instead of letting him go to the post he reenlisted for.  He did his job so well that he was wanted in post, brigade and USAREUR command.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		9 April 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			8 January 2003
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, Chapter 14-12b, JKA, RE-3
e. Unit of assignment:			HHC, 3rd Brigade, 1st Infantry Division, 1st Battalion
63rd Armor Regiment, APO, AE
f. Current Enlistment Date/Term:	9 October 2002, 3 years
g. Current Enlistment Service:	3 months
h. Total Service:			6 year, 3 months, 9 days
i. Time Lost:				None
j. Previous Discharges:		USAR 960930-961105/NA
RA      961106-990715/HD
RA990716-021008/HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	91W10Y2ZZ, Healthcare Specialist
m. GT Score:				128
n. Education:				HS graduate
o. Overseas Service:			Germany 
p. Combat Service:			Kosovo (991130-000618)
q. Decorations/Awards:		AAM-2, GCM, NATOM, KCM-BSS, 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's record shows he enlisted in the Regular Army on 6 November 1996, reenlisted on 16 July 1999, and reenlisted again on 9 October 2002, for 3 years, which is the period of service under review.  He was 31 years old at the time and a high school graduate.  He served a combat tour in Kosovo and earned several awards that included an AAM-2, GCM, and a KCM-BSS.  At the time his discharge proceeding were initiated he was serving in Germany.    

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 23 December 2002, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct; specifically for:

      a.  several incidents of failing to report 
      b.  being incapacitated for duty due to prior overindulgence in alcohol  

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and informed the applicant of his rights.

3.  On 23 December 2002, the applicant waived legal counsel and consideration of his case by an administrative separation board, 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 of a general, under honorable conditions discharge.  

4.  On 6 January 2003, the separation authority, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.  

5.  The applicant was separated on 8 January 2003, under the provisions of Army Regulation 635-200, Chapter 14-12b for a Pattern of Misconduct, with a general, under honorable conditions discharge, an SPD code of JKA and an RE code of 3. 

6.  The evidence of record shows that the applicant had incidents of misconduct from a prior period of honorable service and was discharged for a pattern of misconduct.  However, AR 635-200 provides that commanders may consider incidents from a prior period of enlistment on the issue of retention or separation. 

7.  The separation authority’s decision memorandum which would have stated that the prior incidents was not considered for the purpose of characterization is not part of the available record and the presumption of government regularity prevails in the discharge process, as the separation authority cannot consider information from prior periods of service when determining characterization.  Furthermore, there is no affirmative indication the separation authority did so. 

8.  The applicant’s period of service under consideration was marred by various acts as reflected in the record of nonjudicial punishment UP Article 15, UCMJ and the negative counseling statement that justified the characterization of service awarded.  

9.  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.  

10.  The applicant’s record does not contain any evidence of time lost during the period of service under review.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

1.  The applicant's disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

      On 18 December 2002, for failing to go to his appointed place of duty (021121), and as a result of wrongful overindulgence in intoxicating liquor, incapacitated for the proper performance of his duties (021121).  His punishment consisted of reduction to the grade of E-1, suspended, to be automatically remitted if not vacated before 15 June 2003, forfeiture of $552.00 pay per month for 2 months, extra duty and restriction for 45 days (FG) 
      
2.  There are 2 negative counseling statement dated 21 November 2002, for being late to formation and showing up for duty with a .053 alcohol content on his breath.

EVIDENCE SUBMITTED BY THE APPLICANT 

VA Claim for education benefits, DD Form 214 and a DD Form 149 with attachments.

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 his military records and the issues submitted with the application, there are insufficient 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 repeated incidents of misconduct, the applicant diminished the quality of his service below that meriting a fully honorable discharge.  The applicant’s overall service was marred by three Articles 15 for multiple violations of the Uniform Code of Military Justice and 7 negative counseling statements.

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance.  

4.  The applicant contends that he believes his record was unjust because they were closing down the housing facility and the community he was assigned to and that made it difficult for him to get to work.  Also they took his USAREUR license and he could not drive but they let him keep his military license so he could continue to do his job.  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. 

5.  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 unjustly discriminated.  In fact, the applicant’s three Articles 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.  Further, the applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that the applicant ever sought such assistance before committing the misconduct which led to the separation action under review.  

6.  The applicant further contends when he reenlisted they wanted him to stay there instead of letting him go to the post he reenlisted for.  He did his job so well that he was wanted in post, brigade and USAREUR command.  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 negative counseling statement and the documented actions under Article 15 of the Uniform Code of Military Justice. 

7.  Furthermore, 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.  

8.  Records show the proper discharge and separation authority procedures were followed in this case.

9.  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: 30 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 Conditions
ADRB Case Report and Directive (cont)		AR 20130007172

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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