IN THE CASE OF:  	Mr. 

      BOARD DATE:  	13 November 2013

      CASE NUMBER:  	AR20130008693
___________________________________________________________________________

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 honorable.  

2.  The applicant states, in effect, that he wants to clear his name and recover the benefits that were unfairly taken away by his last command.  He states that he was targeted because his unit felt that he was not sick.  It has been proven by military and civilian doctors that he had a major illness that affected his performance of duty.  He has since been awarded by the VA 100% disability based on his medical records.  He would like to correct the characterization of his discharge and regain his eligibility to receive the GI Bill.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 May 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			30 January 2004
d. Reason/Authority/SPD/RE:		Misconduct, AR 635-200, 14-12c, JKQ, RE-3         
e. Unit of assignment:			HSC, 46th Eng Bn, Ft. Polk, LA 
f. Enlistment Date/Term:		20 February 2001, 3 years 
g. Current Enlistment Service:	2 years, 11 months, 11 days
h. Total Service:			2 years, 11 months, 11 days
i. Time Lost:				30 days confinement based on SPCM sentence.						Adjudged, 17 September 2003, not reflected on the						DD Form 214.		
j. Previous Discharges:		None 
k. Highest Grade Achieved:		E-2	
l. Military Occupational Specialty:	62B10, Construction Equipment Repairer
m. GT Score:				98
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (030425-030615)
q. Decorations/Awards:		NDSM, ASR
r. Administrative Separation Board: 	No
s. Performance Ratings:		None
t. Counseling Statements:		None	
u. Prior Board Review:			No
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 20 February 2001, for a period of 3 years.  He was 18 years old at the time of entry and a high school graduate.  At the time his discharge proceedings were initiated, he was serving at Fort Polk, LA.  His record does not reflect any significant awards or commendations.  He served a combat tour in Iraq.   

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The record shows that the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct-commission of a serious offense, specifically for:

	a.  His conviction on 17 September 2003, at a special courts-martial for disrespect towards a commissioned officer, insubordinate conduct toward a NCO, and communicating a threat. 
	b.  Imposition of a Company Grade Article 15, on 2 October 2001, for FTR.
	c.  Imposition of a Field Grade Article 15, on 26 April 2002, for FTR.

2.  Based on the above misconduct, the unit commander recommended a general, under honorable conditions discharge and advised the applicant of his rights.  

3.  The applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted 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 the proposed discharge.  

4.  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 discharged on 30 January 2004, for misconduct, under the provisions of AR 635-200, Chapter 14-12c, with an SPD code of JKQ and a RE code of 3.

6.  The service record contains a DA Report of Results of Trial, reflecting a trial by SPCM adjudged on 17 September 2003, which the applicant was sentenced to 30 days confinement which is not recorded on the DD Form 214.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  Article 15, dated 26 April 2002, for being FTR x 3, 020319, 020318, and 020317.  The punishment consisted of extra duty for 45 days (suspended until 020707); and 45 days restriction (FG).  

2.  A vacation of suspension of an Article 15 imposed on 1 October 2002.  The Article 15 was imposed for being FTR on 020107.  The punishment which was vacated was a forfeiture of $243.00 (CG). 

3.  A DA Report of Results of Trial, adjudged on 17 September 2003.  The applicant was found guilty of the following offenses and sentenced to 30 days confinement:

	1.  Disrespect to a Superior Officer X 2.
	2.  Offering Violence to a Superior Officer.
	3.  Offering Violence to a Superior Officer.
	4.  Insubordinate Conduct towards an NCO X 2.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 30 April 2013; a DD Form 214; a Certificate of Ordination, dated 16 July 2011; and a VA Rating Decision dated 24 February 2011. 

POST-SERVICE ACTIVITY: 

The applicant states he has been ordained as a Deacon in his church. 

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, 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 service record confirms 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 an honorable discharge.  The applicant’s record of service was marred by a special court-martial, and multiple Articles 15, for violations of the Uniform Code of Military Justice.  

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 was targeted by his unit because they believed his illnesses were not true and now the Veterans Administration (VA) has awarded him 100% disability for his illnesses.  The fact that the VA has granted the applicant service connection for medical conditions suffered while on active duty does not support a conclusion that these conditions rendered the applicant unfit for further service at the time of his discharge processing.  The available medical evidence in the record is void of any indication that the applicant was suffering from a disabling medical or mental condition during his discharge processing that would have warranted his separation processing through medical channels.  

5.  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 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)		AR20130008693



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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