IN THE CASE OF:  	Mr. 

      BOARD DATE:  	29 January 2014

      CASE NUMBER:  	AR20130007451
___________________________________________________________________________

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, that he was improperly discharged.  The applicant contends he was knowingly discharged while he was being treated for a mental illness.  He was injured mentally while deployed and believes his discharge should be upgraded to honorable due to the conditions he endured while on active duty.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		11 April 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			15 November 2011
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14, 						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			B Co, 601st AV Spt, Fort Riley, KS
f. Current Enlistment Date/Term:	2 July 2008, 4 years and 45 weeks
g. Current Enlistment Service:	3 years, 4 months, 14 days
h. Total Service:			3 years, 4 months, 14 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	94Y10, IFTE Oper/Maint
m. GT Score:				101
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia
p. Combat Service:			Iraq (100317-100731)
q. Decorations/Awards:		ICM-w/CS, 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 2 July 2008, for a period of 4 years and            45 weeks.  He was 22 years old at the time of entry and a high school graduate.  He served a tour of combat in Iraq and achieved the rank of PFC/E-3.  His record documents no acts of valor or significant achievements.


SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 4 October 2011, 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 for failing to be at his appointed place of duty on various occasions and displaying a lack of honesty and integrity.

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 6 October 2011, the applicant was given the opportunity to consult with legal counsel, was advised of the impact of the discharge action and did not submit a statement on his own 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 17 October 2011, 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 discharged from the Army on 15 November 2011, 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, with a Separation Program Designator code (SPD) of JKA and an RE code of 3. 

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, imposed on 4 June 2010, for failure to go at the time prescribed to his appointed place of duty x 4 (100128, 100430, 100501, and 100514) and making a false official statement to a noncommissioned officer (091113).  The punishment consisted of reduction to the grade of E-2, forfeiture of $811.00 pay (suspended), and extra duty for 45 days (30 days suspended), and a oral reprimand (CG).

2.  Article 15, dated, 26 July 2011, for failure to go at the time prescribed to his appointed place of duty (110525), being derelict in the performance of his duties (110426), and making a false official statement to a MP Officer.  The applicant turned down the Article 15 and demanded a trial by court-martial; however, the court-martial was dropped.

3.  A CID Report that indicates the applicant was the subject of an investigation for wrongful use and possession of a controlled substance (K2) and failure to obey a lawful order.



4.  A Report of Mental Status Evaluation, dated 21 September 2011, which indicates the applicant was diagnosed with depression and anxiety.  The report also indicates the applicant was evacuated from theater and had continuous psychiatric profiles since November 2010 and that current treators should be consulted to consider MEB verses chapter separation. 

5.  Several negative counseling statements dated between 18 November 2009 and 25 May 2011, for failure to be at his appointed place of duty, lying to a noncommissioned officer, missing formation, driving without a license, four traffic tickets within a month, and not being in the proper uniform.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 149, DD Form 293, and copies of his medical record.

POST-SERVICE ACTIVITY: 

None were 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 document 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 pattern of 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 for multiple violations of the Uniform Code of Military Justice and several 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 he was improperly discharge.  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 improperly discharged.  In fact, the applicant’s two 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.   

5.  The applicant also contends he was discharged while receiving treatment for a mental illness.  The applicant’s service record contains documentation that supports a diagnosis of in service depression and anxiety; however, a careful review of the entire record reveals that this medical condition did not overcome the reason for discharge and characterization of service granted.  The record shows that on 21 September 2021, the applicant underwent a mental status evaluation which indicates he could understand and participate in administrative proceedings and was able to recognize right from wrong.  It appears the applicant’s chain of command determined that although he was receiving medical treatment, he knew the difference between what was right and wrong as indicated by the mental status evaluation.  Further, there are many Soldiers with the same condition that completed their service successfully.

6.  Furthermore, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  
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:  Records Review     Date:  29 January 2014     Location:  Washington, DC

Did the Applicant Testify?  NA 

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)		AR20130007451



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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