IN THE CASE OF:  	

      BOARD DATE:  	13 November 2013

      CASE NUMBER:  	AR20130008259
___________________________________________________________________________

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 his under other than honorable conditions discharge be upgraded to honorable conditions.

2.  The applicant states, in effect, his character of service should be upgraded because he had a period of continuous honorable active service (24 October 2006 - 30 March 2008).  He served one year, two months and 16 days overseas where he earned his combat action badge (CAB). 
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		26 April 2013
b. Discharge Received:		Under Other Than Honorable Conditions
c. Date of Discharge:			14 May 2009
d. Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense),              									AR 635-200, 14-12c, JKQ, RE-3	
e. Unit of assignment:			2-325 IN BN Co C Rifle FC, Fort Bragg, NC
f. Current Enlistment Date/Term:	31 March 2008, 6 years
g. Current Enlistment Service:	9 months, 2 days
h. Total Service:			2 years, 3 months, 19 days
i. Time Lost:				132 days 
j. Previous Discharges:		USAR (20060914-20061023), NA
RA (20061024-20080330), HD
k. Highest Grade Achieved:		E-3
l. Military Occupational Specialty:	92Y1P, Unit Supply Specialist
m. GT Score:				97
n. Education:				GED
o. Overseas Service:			SWA 
p. Combat Service:			Iraq, (20070104-20080319)
q. Decorations/Awards:		NDSM,GWTSM, ICM-CS, ASR, Parachutist Badge,							CAB
r. Administrative Separation Board: No	
s. Performance Ratings:		No
t. Counseling Statements:		Yes
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 24 October 2006 for a period of 3 years and    24 weeks.  He reenlisted on 31 March 2008 and was 19 years old at the time and had a GED.    He served one combat tour in Iraq in 2007.  His record does not contain any significant achievements or meritorious awards; however he was awarded the CAB.  When his discharge proceedings were initiated he was serving at Fort Bragg, NC.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 7 October 2008, the commander notified the applicant of initiation of separation action under Army Regulation 635-200, 14-12c.  Specifically for:

	a.  On 21 July 2008, failed to go at the time prescribed to his appointed place of duty.
	b.  On 21 July 2008, willfully disobeyed orders issued by a 1LT.
	c.  On or about 18 September 2008, absent from his unit until 2 October 2008.
	d.  On or about 29 September 2008, stole a vehicle, the property of a SPC.

2.  Based on the above misconduct, the commander recommended an under other than honorable conditions discharge.

3.  On 7 October 2008, the applicant consulted with legal counsel, was advised of the impact of the discharge action, unconditionally waived his right to an administrative separation board, and did not submit a statement in his own behalf.  The unit commander subsequently recommended separation from the Army and waiver of further rehabilitative efforts.  The intermediate commanders reviewed the proposed action and recommended approval with an under other than honorable conditions discharge.  

4.  On 23 April 2009, the separation authority approved the unconditional waiver request and directed the applicant’s discharge with a characterization of service of under other than honorable conditions.  

5.  The applicant was separated on 14 May 2009, under Army Regulation 635-200, Chapter 14-12c, with a under other than honorable conditions discharge, an SPD code of JKQ, and an RE code of 3.                

6.  The applicant's record shows he was absent without leave (AWOL) during the period 20080828-20080831, 20080919-20081001, 20081117-20090222; and a period of confinement, 20081008-20081026.  The circumstances of his return to military control were not in his file.  The total time lost was 132 days.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 28 August 2008, dereliction of duty, in that he failed to report on two occasions on 21 July 2008; disobeyed a lawful command from a 1LT on 21 July 2008.  The punishment consisted of reduction to the grade of E-2, 14 days of extra duty and restriction (CG). 

2.  Four negative counseling statements dated between 22 July 8 and 3 October 2008, for failing to report, missing formations, disobeying orders, driving with suspended license, AWOL, personal appearance, larceny of a vehicle, sniffing canned air, admission of using illegal drugs, recommendation for court martial, and pretrial confinement.
      
3.  An MP Report dated 2 October 2008, that indicates the applicant was the subject of an investigation for larceny of a motor vehicle. 

4.  A Department of the Army Report of Result of Trial, shows on 8 October 2008 the applicant was tried by a Summary Court-Martial at Fort Bragg, NC.  The applicant offered a plea and was found guilty to the charges of AWOL and Larceny of a motor vehicle.  His sentence was a reduction to the grade of E-1; forfeiture of $898; and, confinement for 30 days.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided DD Form 149, VA Form 21-4138 and a DD Form 214.

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.



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 documents and the issues 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 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 an Article 15, four counseling statements for multiple violations of the Uniform Code of Military Justice and by a Summary Court-Martial.

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 that he had good service which included overseas duty and earning the CAB.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully 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 or by the multiple negative counseling statements, the documented actions under Article 15 of the Uniform Code of Military Justice and the conviction by a Summary Court-Martial.

5.  The applicant further contends that he would like to use his GI Bill.  The applicant contends that an upgrade of his discharge would allow educational benefits through the use of the GI Bill.  However, 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 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:  13 November 2013	Location:  Washington, DC

Did 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)		AR20130008259



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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