IN THE CASE OF:  	Mr. 

      BOARD DATE:  	1 November 2013

      CASE NUMBER:  	AR20130007757
___________________________________________________________________________

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

2.  The applicant states, in effect, he admits making a bad decision to drink, not getting enough sleep, and driving to work in the morning with alcohol still in his system.  However, his case was dismissed by a State traffic court.  He enjoyed his time in service and tried his best to excel in the U.S. Army.  He disagreed with the decision to discharge him, because he wanted to make the military his career.  He understands he made a bad decision, but he learned from his mistakes.  He no longer drinks alcohol.  He is trying to move forward with his civilian life and studying to be an elementary school teacher.  He also requests his rank be corrected to SGT/E-5 on his DD Form 214.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	22 April 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	23 May 2012
	d.	Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Paragraph 14-
			12b, JKA, RE-3
	e.	Unit of assignment:	Rear Detachment, 3rd Bn, 7th FA, Schofield 
			Barracks, HI 
	f.	Current Enlistment Date/Term:	7 February 2009, 5 years
	g.	Current Enlistment Service:	3 years, 3 months, 16 days
	h.	Total Service:	5 years, 6 months, 29 days
	i.	Time Lost:	None
	j.	Previous Discharges:	RA (061025-090206) / HD
	k.	Highest Grade Achieved:	E-5
	l.	Military Occupational Specialty:	13B10, Cannon Crewmember
	m.	GT Score:	94
	n.	Education:	HS Graduate
	o.	Overseas Service:	HI, SWA
	p.	Combat Service:	Afghanistan (110405-111116), Iraq (081008-090918)
	q.	Decorations/Awards:	ARCOM; AAM-3; AGCM; NDSM; ACM-CS; ICM-
			CS; GWOTSM; ASR; OSR-3; NATO MDL; MUC
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	Yes
	t.	Counseling Statements:	NIF
	u.	Prior Board Review:	No 

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 25 October 2006, and reenlisted 7 February 2009, for a period of 5 years.  He was 19 years old at the time of entry and a high school graduate.  He served in Iraq and Afghanistan.  He earned an ARCOM and three AAM awards.  He completed 5 years, 6 months, and 29 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s service record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was digitally authenticated by the applicant’s signature.  

2.  The DD Form 214 indicates that on 23 May 2012, the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12b, for pattern of misconduct, with a characterization of service of general, under honorable conditions.  The DD Form 214 shows a Separation Program Designator (SPD) code of JKA and a reentry (RE) code of 3.  

3.  The applicant’s available record does not show any recorded actions under the UCMJ, unauthorized absences or time lost.  However, he was separated as a PVT/E-1 and the action that caused his reduction is not contained in the service record.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  A General Officer Memorandum of Reprimand (GOMOR), dated 20 September 2011, for driving while intoxicated and being involved in a traffic collision.  The GOMOR file includes a negative counseling statement, an MP Report, dated 20 February 2011, that indicates the applicant was the subject of an investigation for being arrested and held on $500 bail for DUI by civilian authorities, and the civilian police department arrest report.

2.  Three NCOERs covering the following periods:

	a.	28 January 2011 to 18 November 2011:  The applicant was rated as “Marginal” and received 4/3 from the senior rater.  
	b.	28 January 2010 to 27 January 2011:  The applicant was rated as “Fully Capable” and received 2/2 from the senior rater.
	c.	1 March 2009 to 22 January 2010:  The applicant was rated as “Fully Capable” and received 2/2 from the senior rater.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided civilian court documents (Notice of Entry of Judgment and/or Order and Plead/Judgment), dated 3 August 2012, indicating charges being dismissed without prejudice, and the three aforementioned NCOERs.






POST-SERVICE ACTIVITY: 

The applicant states, in effect, he no longer drinks alcohol, and is studying to be an elementary school teacher.  

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 issues, and documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  However, the record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge and government regularity is presumed in the discharge process.  

3.  The DD Form 214 also indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c by reason of misconduct (serious offense), with a characterization of service of general, under honorable conditions.  Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant contends that the case against him was dismissed by the state traffic court.  However, the state judgment order he provided indicates his case was dismissed without prejudice.  This action is a procedural step which is part of a normal process, when an alternative forum is chosen.  The judgment order is inconclusive or illegible with any further information or basis for the case being dismissed without prejudice.

5.  Furthermore, the applicant's contentions about disagreeing with the decision to discharge him were carefully considered.  However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service.  Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced sufficient evidence, to support a change to the characterization of service granted.  The applicant’s statements alone do not overcome the presumption of government regularity and the application contains insufficient evidence in support of this request for an upgrade of the discharge.  

6.  If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record.

7.  Further, the applicant contends the rank on his DD Form 214 is incorrect and requested a correction be made.  However, the applicant’s requested change to the DD Form 214 does not fall within the purview of this Board.  The applicant may apply to the Army Board for Correction of Military Records (ABCMR), using the enclosed DD Form 149 regarding this matter.  A DD Form 149 may also be obtained from a Veterans' Service Organization.

8.  Therefore, based on the available evidence and the government presumption of regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief.


SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review      Date:   1 November 2013      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


ADRB Case Report and Directive (cont)		AR20130007757



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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