IN THE CASE OF:  	

      BOARD DATE:  	21 June 2013

      CASE NUMBER:  	AR20130007983
___________________________________________________________________________

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 to rejoin the Army and it would be easier with an HD.  He was wrongfully discharged as a result of false counseling statements and after taking his case to the Inspector general (IG), they agreed with him; however, nothing was done about it.  He wasn’t the perfect Soldier, but he was innocent of the things he was accused of, and that ultimately led to his discharge from the Army.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		23 April 2013
b. Discharge Received:		General, Under Honorable Conditions 
c. Date of Discharge:			25 September 2010
d. Reason/Authority/SPD/RE:		Pattern of Misconduct, AR 635-200, Chapter 14-12b 						JKA, RE-3
e. Unit of assignment:			A Co, 1st Battalion, 2d IN Regiment, TF 3-66 AR 						Schweinfurt, Germany
f. Current Enlistment Date/Term:	23 October 2007, 6 years
g. Current Enlistment Service:	2 years, 11 months, 3 days
h. Total Service:			5 years, 4 months, 24 days
i. Time Lost:				None
j. Previous Discharges:		RA (050502-071022), HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	13F10, Fire Support Specialist
m. GT Score:				116
n. Education:				HS graduate
o. Overseas Service:			SWA, Germany
p. Combat Service:			Iraq (061004-070917 and 081126-091101)
q. Decorations/Awards:		ARCOM, AGCM, NDSM, ICM-2, GWOTSM, ASR 						OSR-2, CAB
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 2 May 2005 and on              23 October 2007 he reenlisted for a period of 6 years.  He was 21 years old at the time and was a high school graduate.   The applicant’s record indicates he served two combat tours in Iraq.  He was awarded an ARCOM, an AGCM and a CAB.

SEPARATION FACTS AND CIRCUMSTANCES

1.  On 27 August 2010, 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 having received 3 Articles 15 for the following offenses:

      a. Multiple failures to report to his designated place of duty 
      b. Disobeying a lawful order from a commissioned officer
      c. Disrespectful to an NCO
      d. Failing to obey an order or regulation 
      e. Providing a false statement on 2 occasions
      f.  Dereliction of duty  

2.  The unit commander determined that the applicant had received proper counseling and given adequate time to correct his deficiencies; the applicant was not performing up to Army standards.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and informed the applicant of his rights.

3.  On 27 August 2010, the applicant waived 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 of a general, under honorable conditions discharge.  

4.  On 8 September 2010, 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 25 September 2010, under the provisions of Army Regulation 635-200, Chapter 14-12b for a Pattern of Misconduct, with a general, under honorable conditions discharge, a SPD code of JKA and a RE code of 3.

6.  The applicant’s record does not show any 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 (UCMJ), as follows:

      a.  Summarized Article 15 issued on 11 September 2008, for being AWOL (080730), assault or disobeyed a lawful order from a commissioned officer (080730), insubordinate conduct towards a warrant officer, NCO or petty officer (080730), failed to obey a lawful order or regulation (080730).  His punishment consisted of 7 days of extra duty and restriction.
      
      b. Company Grade Article 15 issued on 19 February 2009, for failure to report (081017), provided a false statement with intent to deceive (081017), failed to report (081002).  His punishment consisted of reduction to the grade of E-3, forfeiture of pay in the amount of $433.00, 14 days of extra duty and restriction.
      
      c. Company Grade Article 15 issued on 1 June 2010, for failure to report two times (100401, 100430), disobeyed a lawful order from NCOs 3 times (090817, 100301, 100315), disrespectful to an NCO (100401), dereliction of duty (090817), provided a false statement with intent to deceive (100401).  His punishment consisted of reduced to E-3, forfeiture of pay in the amount of $448.00, 14 days of extra duty and restriction.
      
2.  The record contains numerous negative counseling statements dated between 17 August 2009 and 16 June 2010 for offenses related to unsatisfactory performance, leaving his weapon unsecure, failure to complete assigned tasks, failure to provide financial support to his spouse, disrespectful to an NCO, disobeying orders, lying to NCOs, being out of uniform, breaking restriction, having unprotected sex with a woman not his wife, and room cleanliness.

EVIDENCE SUBMITTED BY THE APPLICANT 

None provided with the application.
 
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.

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKA" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, for pattern of misconduct.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned a SPD Code of "JKA" will be assigned a RE Code of 3.

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 an honorable discharge.  The applicant’s service was marred by 3 Article 15s for multiple violations of the Uniform Code of Military Justice and numerous 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 was wrongfully discharged as a result of false counseling statements and after taking his case to the IG, they agreed with him; however, nothing was done about it.  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 his 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 15s 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 he has not provided any documentation or further evidence in support of his request for an upgrade of his discharge.   

5. The applicant’s in-service accomplishments and the quality of his service during the initial portion of the enlistment under review were duly 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 and numerous negative counseling statements, and the documented actions under Article 15 of the Uniformed Code of Military Justice.

6.  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.
Moreover, 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 desires to reenlist in the Army.  However, he was appropriately assigned a reentry code of 3.  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 his 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.  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: 	21 June 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 20130007983

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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