IN THE CASE OF:  Mr. 

      BOARD DATE:  	20 November 2013

      CASE NUMBER:  	AR20130007479
___________________________________________________________________________

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, he would like an upgrade so that he can receive his 9/11 GI Bill, because he served with honor and would have made the Army a career had it not been for a particular sergeant who had a personal issue with him that was not related to his military service or performance.  He has told by the sergeant she would see to it that he was chaptered out of the military before she was to leave her duty station in Korea.  He brought the situation up to his chain of command and asked to be transferred to a different battery or change his NCO but he was refused.  He continued to receive counseling statements which he refused to sign due to the fact that they were false allegations and misconstrued to make it appear he was being insubordinate, which was never the issue, but the issue he had was the counseling statements.  

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		15 April 2013 
b. Discharge Received:		General, under honorable conditions 
c. Date of Discharge:			16 March 2002
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, Chapter 14-12b, JKA, RE-3
e. Unit of assignment:			HHB, 1st Battalion (Patriot),  43rd Air Defense Artillery,
6th Cavalry Brigade, APO, AP 96271
f. Current Enlistment Date/Term:	3 November 2000, 3 years
g. Current Enlistment Service:	1 year, 4 months, 14 days 
h. Total Service:			1 year, 4 months, 14 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-2	
l. Military Occupational Specialty:	92G10, Food Service Specialist
m. GT Score:				90
n. Education:				HS Grad
o. Overseas Service:			Korea (010512-020316)
p. Combat Service:			None
q. Decorations/Awards:		ASR, OSR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		Yes	
u. Prior Board Review:			None


SUMMARY OF SERVICE:		
	
The applicant's record shows he enlisted in the Regular Army on 3 November 2000, for a period of 3 years; he was 21 years old at the time and a high school graduate.  The record shows he served in Korea and at the time his discharge proceeding were initiated he was stationed at Camp Humphreys.  He served for 1 year, 4 months, and 14 days of active duty service.  

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 28 January 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 a pattern of misconduct; specifically for receiving a Company Grade Article 15, disobeying a written order, a vacation of a suspended sentence for disobeying a noncommissioned officer and repeated incidents of failing to repair.  

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

3.  The applicant consulted with legal counsel, 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 with a general, under honorable conditions discharge. 

4.  On 27 February 2002, the separation authority, waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions discharge. 

5.  The applicant was separated on 16 March 2002, under Army Regulation 635-200, Chapter 14-12b (Pattern of Misconduct), with a general, under honorable conditions discharge, an SPD code of JKA and an RE code of 3.

6.  The applicant’s record does not contain any evidence of unauthorized absences or time lost.    

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, for disobeying a lawful order issued by a CPT, (010707).  His punishment consisted of reduction to Private E-1, suspended, forfeiture of pay in the amount of $255.00, extra duty and restriction for 45 days (CG).

2.  Record of supplementary action under Article 15 UCMJ; suspension of the punishment of reduction to private (E-1), forfeiture of $255.00 imposed on (010808) which was vacated, effective 31 October 2001, based on the applicant’s offense of being disrespectful in language towards a SGT (011022). 

3.  The record contains several negative counseling statements with various dates that indicate the applicant was being counseled for being late for duty, failing to report, AWOL, breaking restriction, disobeying a lawful order, negligent behavior, uniform not satisfactory, disrespecting a noncommissioned officer, disobeying a direct order and not showing up for physical fitness.   

4.  A command referred Mental Status Evaluation dated 26 November 2001, which indicated the applicant, based on the Diagnostic and Statistical Manual (DSM IV) was diagnosed as follows: Adjustment Disorder with mixed disturbance of emotions and conduct; alcohol abuse and occupational problems.  The Clinical Psychologist further indicated that there was no psychiatric disease or defect which warranted disposition through the medical channels and cleared the applicant for any administrative action deemed appropriate by command.  

5.  A Notice of Involuntarily Referral for Mental Health Evaluation dated 15 November 2001, in reference to the applicant’s behavior and/or verbal expressions which led the A commander to determine a mental health evaluation was necessary because the applicant was pending separation under the provisions of AR 635-200, Chapter 9.   

EVIDENCE SUBMITTED BY THE APPLICANT 

The applicant provided a self authored statement dated 18 March 2013, copy of his DD Form 214 for the period of service under review in additional to his application dated 16 March 2002, character reference letter, several counseling statements with various dates, record of proceedings under Article 15, UCMJ, dated 8 August 2001, and a record of supplementary action under Article 15 UCMJ dated 31 October 2001.  

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 were 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 serious misconduct, the applicant diminished the quality of his service below that meriting an honorable discharge.  The applicant’s record of service was marred by one Article 15, record of supplementary action under Article 15 UCMJ and several negative counseling statements for violations of the Uniform Code of Military Justice.  

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 he would like an upgrade so that he can receive his 9/11 GI Bill, because he served with honor and would have made the Army a career had it not been for a particular sergeant who had a personal issue with him that was not related to his military service or performance.  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 unjustly discriminated.  In fact, the applicant’s Article 15, record of supplementary action under Article 15 UCMJ and numerous negative counseling statements as mentioned in paragraph 2 above justified 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.  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.

6.  The applicant further contends he brought the situation up to his chain of command and asked to be transferred to a different battery or change his NCO but he was refused.  He continued to receive counseling statements which he refused to sign due to the fact that they were false allegations and misconstrued to make it appear he was being insubordinate, which was never the issue.  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 records show the proper discharge and separation authority procedures were followed in this case.  

8.  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:  20 November 2013     Location:  Washington, DC

Did the Applicant Testify?  NA 

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 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	UOTH - Under Other Than                           			               Honorable
ADRB Case Report and Directive (cont)		AR 20130007479

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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