IN THE CASE OF:  	Mr. 

      BOARD DATE:  	8 January 2014

      CASE NUMBER:  	AR20130008134
___________________________________________________________________________

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 is experiencing employment difficulties due to the discharge he received; his discharge status hinders him from obtaining a job.  He has exhausted his unemployment benefits, but still receiving benefits due to an extension because of his situation and the state of the economy. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date: 		25 April 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			16 August 2012
d. Reason/Authority/SPD/RE Code:	Pattern of Misconduct, AR 635-200, Chapter 14 						paragraph 14-12b, JKA, RE-3
e. Unit of assignment:			B Battery, 3-321st Field Artillery Regiment, Fort 
      Bragg, NC
f. Current Enlistment Date/Term:	30 January 2007, 6 years
g. Current Enlistment Service:	5 years, 6 months, 17 days 
h. Total Service:			11 years, 4 months, 24 days
i. Time Lost:				None
j. Previous Discharges:		RA (010323-040322)/HD										USARCG (040323-070129)/HD
k. Highest Grade Achieved:		E-5
l. Military Occupational Specialty:	13B1P, Cannon Crewmember
m. GT Score:				117
n. Education:				HS Graduate
o. Overseas Service:			Southwest Asia/Suriname/Kosovo
p. Combat Service:			Afghanistan (100103-110101), Iraq (030205-030505 						prior service)
q. Decorations/Awards:		ARCOM, AAM-2, AGCM-2, NDSM, ACM-W/2 CS 						GWOTEM, GWOTSM, ASR, OSR-2, KCM-W/BS 						NATO MDL-2, CIB
r. Administrative Separation Board: 	Yes
s. Performance Ratings:		Yes
t. Counseling Statements:		Yes
u. Prior Board Review:			No

SUMMARY OF SERVICE:

The applicant enlisted in the Regular Army on 23 March 2001, for a period of 3 years.  He was 20 years old at the time of entry and a HS Graduate.  The military occupational specialty (MOS) he was initially trained in is not contained in the available record.  He completed his enlistment and was discharged on 22 March 2004 with an honorable characterization of service. He was transferred to the USARCG to complete his reserve obligation, which was scheduled to end on 15 March 2009.  He was discharged from the US Army Reserve on 29 January 2007, with an honorable characterization of service for his immediate reenlistment in the Army.  He reenlisted in the Regular Army on 30 January 2007, for a period of 6 years and was 26 years old at the time.  His record also shows he served two combat tours (i.e., one was prior service), earned several awards including an ARCOM, AAM-2, AGCM-2, and a CIB; and he achieved the rank of SGT/E-5.  He was serving at Fort Bragg, NC when his discharge was initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 2 April 2012, 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.  Specifically for the following offenses:

     a.  failing to report to his appointed place of duty x 3 (110811, 120110, 120313)

     b.  wrongfully using spice (111016-111114)

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 3 April 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, requested consideration of his case by an administrative separation board, and indicated he intended to submit a statement on his behalf; however, that statement is not contained in the available record.  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 the separation with a general, under honorable conditions discharge.  

4.  The memorandum notifying the applicant to appear before an administrative separation, advising him of his rights and the administrative separation board proceedings are not contained in the available record and government regularity is presumed in the discharge process.

5.  On 16 July 2012, the separation authority approved the findings and recommendations of the administrative separation board and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

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

7.  The applicant was discharged from the Army 16 August 2012, 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, a Separation Program Designator code (SPD) of JKA and an RE code of 3.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1. An Article 15, dated 3 January 2012 for wrongfully using spice (111016-111114); the punishment consisted of reduction to E-4, forfeiture of $1,162 pay and extra duty for 45 days, (FG).  The applicant submitted this Article 15 with his application.

2.  An Article 15, dated 20 May 2010 for dereliction of duty x 4, in that he negligently failed to pull radio guard (100428), negligently failed to wake his replacement for radio guard (100420), negligently failed to stay awake during his shift of radio guard (100325); and negligently failing to report that he had a close combat optic in his possession not assigned him (100321); the punishment consisted of forfeiture of $644 pay x 1 month, a written letter of reprimand, and extra duty for 14 days (suspended), (CG).

3.  The record contains two successful NCOERs covering the periods 1 May 2009 through     28 February 2011.

4.  The record also contains a successful DA Form 1059 (Service School Academic Evaluation Report), dated 7 April 2011.

5.  The record additionally contains a punitive memorandum of reprimand, dated 20 May 2010 for his conduct on several occasions during the months of March and April 2010.

6.  He received six negative counseling statements, completed between 21 March 2010 and 20 December 2011 for failing to account for sensitive items, sleeping on radio guard, failing to obey a direct order, failing to pull radio guard, use of illegal drugs and conditions on liberty.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, DA Form 1059 (Service School Academic Evaluation Report), two DA Forms 2166-8 (NCO Evaluation Report), Citation, AGCM, AGCM Orders 267-10, two Certificates, NATO MDL, CIB Orders 174-310, four certificates of training, four Diplomas, certificate from Fayetteville Technical Institute, three character/support statements, four pages of photographs, DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), Letter, North Carolina Department of Commerce, Division of Employment Security, Strayer University, Enrollment Verification, United States of America, Certificate of Naturalization, marriage certificate, DD Form 214 and Discharge Orders 213-0263.

POST-SERVICE ACTIVITY: 

The applicant did not provide any with his 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 issues and documents 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, a punitive memorandum of reprimand, and six 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 is experiencing employment difficulties due to the discharge he received; his discharge status hinders him from obtaining a job.  The Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities. 

5.  The applicant further contends he has exhausted his unemployment benefits, but still receives benefits due to an extension because of his situation and the state of the economy.  However, this contention is not a matter upon which the Army Discharge Review Board grants a change in discharge because it raises no matter of fact, law, procedure, or discretion related to the discharge process, nor is it associated with the discharge at the time it was issued.  

6.  The records show the proper discharge and separation authority procedures were followed in this case.  

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:  8 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)		AR20130008134



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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