IN THE CASE OF:  	Mr. 

      BOARD DATE:  	23 October 2013

      CASE NUMBER:  	AR20130007357
___________________________________________________________________________

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 from general, under honorable conditions to honorable.

2.  The applicant states, in effect, he would like to reenlist and or possibly receive his GI Bill.  His chain of command was very poor in assisting him with his divorce issues and discharged him instead of helping him; his chain of command also punished him several times for the same offense. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date 		15 April 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			23 December 2008
d. Reason/Authority/SPD/RE Code:	Pattern of Misconduct , AR 635-200, Chapter 14 						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			HHD, 97th Military Police Battalion, U.S. Army 							Garrison, Fort Riley, KS
f. Current Enlistment Date/Term:	23 August 2007, 5 years
g. Current Enlistment Service:	1 year, 4 months, 1 day
h. Total Service:			1 year, 4 months, 1 day
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2
l. Military Occupational Specialty:	31B10, Military Police
m. GT Score:				103
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:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 23 August 2007, for a period of 5 years.  He was 18 years old at the time of entry and a high school graduate.  He was trained in and awarded military occupational specialty (MOS) 31B10, Military Police.  His record does not contain any evidence of acts of valor or meritorious achievements, and he achieved the rank of PV2/E-2.  He was serving at Fort Riley, KS when his discharge was initiated.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates on 10 December 2008, the unit commander, notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, by reason of pattern of misconduct.  Specifically for the following offense:

     a.  failing to be at his appointed place of duty on divers occasions x 2 (080711, 081118)

     b.  receiving a Company Grade Article 15 (080620), for failing to report his appointed place of duty x 2 (080312, 080501)

     c.  receiving a Field Grade Article 15 (080731), for failing to report his appointed place of duty, disobeying his commander, violating a no contact order, and disobeying LT A

     d.  being served with a protection order for stalking (080722)

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 18 December 2008, 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, contingent upon him receiving a characterization of service of no less favorable than general, under honorable conditions (although he was not entitled to an administrative separation board), and submitted 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 the separation with a general, under honorable conditions discharge.  

4.  On 22 December 2008, 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’s service record does not contain any evidence of unauthorized absences or time lost.  

6  The applicant was discharged from the Army on 23 December 2008, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12b, AR 635-200, for a pattern of misconduct, a Separation Program Designator code (SPD) of JKA and an RE code of 3.



EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An Article 15, dated 31 July 2008 for without authority, failing to go at the time prescribed to his appointed place of duty x 2 (080711); willfully disobeying a lawful order from CPT JD (080504); and willfully disobeying a lawful order from LT JA (080701); the punishment consisted of extra duty for 45 days and restriction for 45 days, (FG).

2.  An Article 15, dated 20 June 2008 for without authority, failing to go at the time prescribed to his appointed place of duty x 2 (080312, 080501); the punishment consisted of reduction to E-1, forfeiture of $314 pay (suspended), extra duty for 14 days and restriction for 14 days, (CG).

3.  The record contains a Court Document, District Court Geary County, dated 23 July 2008, which indicated the applicant appeared in court for stalking and the charge appears to have been dismissed. 

4.  He received 14 negative counseling statements which were completed between 12 March 2008 through 18 November 2008, for failing to report on divers occasions, disobeying a lawful order on divers occasions, disobeying an order/regulation on more than one occasion, missing formation, failing to keep living area clean, obey the no contact order, and being recommended for separation action under Chapter 14-12b.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293; page 3 of a law enforcement report, and applicant’s statement.

POST-SERVICE ACTIVITY: 

The applicant did not provide any 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 record 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 a fully honorable discharge.  The applicant’s record of service was marred by two Articles 15 and 14 negative counseling statements.

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 chain of command was very poor in assisting him with his divorce issues and discharged him instead of helping him; his chain of command also punished him several times for the same offense.  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.

5.  Further, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  

6.  Also, 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.



7.  The applicant additionally contends would like to reenlist and or possibly receive his GI Bill.  
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. 

8.  Furthermore, 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.

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:  23 October 2013        Location:  Washington, DC

Did the Applicant Testify:  No

Counsel:  None

Witnesses/Observers:  NA 

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:	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)		AR20130007357



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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