IN THE CASE OF:  	

      BOARD DATE:  	1 November 2013

      CASE NUMBER:  	AR20130008059
___________________________________________________________________________

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 has grown into a mature man and has learned from his mistakes.  He needs to take care of his family and would like an upgrade to reenter the military.  Currently he is on good terms with his ex-spouse.  At the time of the adultery he was separated from his wife and living in the barracks.  He believes separating him from the Army was a bit overboard.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		29 April 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			30 November 2010 
d. Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200, 14-12c 
      JKQ, RE-3        
e. Unit of assignment:			04 101 AV FWD SPT C FC, Fort Campbell, KY
f. Current Enlistment Date/Term:	11 October 2009, 5 years
g. Current Enlistment Service:	1 year, 1 month, 20 days
h. Total Service:			3 years, 8 month, 18 days
i. Time Lost:				None
j. Previous Discharges:		USAR (20070222-200703120), NA
RA (20070313-20090312), HD
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	88M10, Motor Transport Operator
m. GT Score:				103
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Afghanistan (20081212-20091112)
q. Decorations/Awards:		AAM-2, ACM-CS, NDSM, GWOTSM, ASR, OSR 
   NATO MDL, CAB
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 13 March 2007 for a period of 3 years and       18 weeks after serving 10 days in the USAR.  He was 21 years old at the time of entry and a high school graduate.  He served in Afghanistan.  He earned two AAMs and completed           1 year, 1 month, and 20 days of active duty service for the period under review.  He completed 3 years, 8 month, 18 days of military service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 14 October 2010, the commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14-12c, commission of a serious offense.  Specifically for:

     a.  Having sexual intercourse, with PFC B, a married woman and not his wife, on 1 March 2010. 

     b.  Failing to obey a military protective order on 31 May 2010.

     c.  The following misconduct was considered for characterization purposes only:

      Failure to report (6 March 2008; 8 August 2008; 13 and 14 September 2008;                 
           6 November 2008; 19 January 2009; 18 March 2010 x 2; 8 April 2010)
         		
      Failed the APFT (18 March 2010)
          		
      Violated restriction (7 December 2008)
          		
      Tested positive for cocaine (27 - 29 September 2008)
         		
      Disobeyed a lawful order (3 January 2008; 29 February 2008; 28 August 2008)

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 28 October 2010, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action and submitted character statements.  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 6 November 2010, the separation directed the applicant’s discharge with a characterization of service of general, under honorable conditions discharge.

5.  The applicant was separated on 30 November 2010, under Army Regulation 635-200, Chapter 14-12c, misconduct (serious offense), with a general, under honorable conditions discharge, an SPD code of JKQ, 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.   There is one positive urinalysis reports contained in the record:

	RI, Random Inspection, 28 September 2008, cocaine

2.  Article 15, dated 7 July 2010, wrongfully having sexual intercourse with a married woman not his wife; and, failed to obey a lawful military protective order on 31 May 2010.  The punishment consisted of reduction to the grade of E-1, forfeiture of $723 per month for two months (suspended), 45 days of extra duty and restriction (FG).

3.  Article 15, dated 13 November 2008, for wrongfully using cocaine (27-19 September 2008), The punishment consisted of reduction to the grade of E-1, forfeiture of $673 per month for two months, 45 days of extra duty and restriction, and an oral reprimand (FG).

4.  Article 15, dated 10 September 2008, for failing to go to his place of duty at the prescribed time (8 September 2008 x 2).  The punishment consisted of 14 days of extra duty and restriction, and an oral reprimand (CG).

5.  Nineteen negative counseling statements dated between 7 January 2008 and                   14 September 2010, for missing formations, failing to report, disobeying orders, unsatisfactory performance, military appearance, positive urinalysis, over-weight, non-judicial punishment and separation counseling.

6.  A Military Protective Order dated 13 May 2010, that directed the applicant not to have contact with PFC B.

7.  A Military Protective Order dated 13 May 2010, that directed the applicant not to have contact with his spouse SPC C.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, a picture, two character statements and a DD Form 214.

POST-SERVICE ACTIVITY: 

The applicant did not state any post service activity.  

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 service record and the issue 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 serious misconduct, the applicant diminished the quality his service below that meriting a general or a fully honorable discharge.  The applicant’s record of service was marred by three Articles 15 for multiple violations of the Uniform Code of Military Justice and 19 negative counseling statements for multiple acts of misconduct.

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 desires to rejoin the military service.  However, 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 is                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              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. 
5.  The records show the proper discharge and separation authority procedures were followed in this case.  

6.  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:  1 November 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 Authority for Separation:		No Change
Change RE Code to:			No Change
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)		AR20130008059



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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