IN THE CASE OF:  	Mr. 

      BOARD DATE:  	22 January 2014

      CASE NUMBER:  	AR20130008694
___________________________________________________________________________

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 under other than honorable conditions to general under honorable conditions.

2.  The applicant states, in effect, that he was punished under civilian law and paid his debt to society.  He was being medically discharged with a proposed VA rating of 90 percent disability.  He has three children and it is difficult to support them with meager wages.  He deployed to both Iraq and Afghanistan and served his country proudly for over six years.  He received multiple combat medals including a Purple Heart and two ARCOMs with “V” device.  He made a mistake and suffered the lawful consequences.  He deserves at least an upgrade to a general under honorable conditions discharge so that he can begin receiving his benefits.
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		3 May 2013
b. Discharge received:			Under Other than Honorable Conditions
c. Date of Discharge:			29 August 2012
d. Reason/Authority/SPD/RE:		Misconduct (Civil Conviction), AR 635-200, Chapter 						14, SEC II, JKB, RE-4
e. Unit of assignment:			Co B, WT MC, Fort Carson, CO
f. Current Enlistment Date/Term:	7 July 2007, 4 years 18 weeks 		
g. Current Enlistment Service:	5 years, 1 month, 25 days
h. Total Service:			6 years, 1 months, 27 days
i. Time Lost:				356 days
j. Previous Discharges:		RA (050707-070704), HD 
k. Highest Grade Achieved:		E-4
l.  Military Occupational Specialty:	19D10, Cavalry Scout 
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Iraq (061012-071231), Afghanistan (090523-100512)
q. Decorations/Awards:		ARCOMV-2, ARCOM-2, PH, NATOISAF, ICM-CS
ACM-CS, GWOTSM, ASR, OSR-2, VUA, AGCM-2 CAB
r. Administrative Separation Board: 	NIF
s. Performance Ratings:		None
t. Counseling Statements:		None
u. Prior Board Review:			No


SUMMARY OF SERVICE:		
	
The applicant enlisted in the US Army on 7 July 2005, for a period of 4 years and 18 weeks.  He was 24 years old at the time of entry and was a high school graduate.  His record indicates he served in Iraq and Afghanistan.  He earned several awards including four ARCOMs (two with “V” device), and a PH.  The applicant was serving at Fort Carson, CO, when his discharge proceedings were initiated.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to the discharge from the Army.  The record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant’s signature.  He was discharged as a PVT/E-1.

2.  The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14, Sec II, for misconduct (civil conviction), with a characterization of under other than honorable conditions.  The DD Form 214 shows a Separation Program Designator (SPD) code of JKB and a reentry (RE) code of 4.  

3.  The applicant’s available record does not show any recorded actions under the UCMJ; however, he was separated as a PVT/E-1 and the action that caused his reduction is not contained in the service record.

4.  The applicant’s record contains 356 days of lost time (110904-120829).  The reason for the lost time is not contained in his official record.

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  There are no counseling statements or UCMJ actions in the record.  However, the applicant was discharged as a PVT/E-1; the action that reduced him in rank is not available in his record.

2.  The applicant’s record contains findings of a Physical Evaluation Board (PEB), approved 
12 August 2011.  The board found the applicant physically unfit and recommended a combined rating of 50 percent, and that he be placed on the temporary disability retired list with reexamination during May 2012.  The applicant concurred with the findings on 15 August 2011.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293, dated 28 April 2013; a DD Form 214; a discharge order dated 25 August 2011; a copy of his PEB findingd, dated 12 August 2011; and copies of several awards, commendations, and a discharge certificate.

POST-SERVICE ACTIVITY: 

None were 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, and the issue submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant's discharge.  

2.  The applicant’s record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army.  However, the applicant’s record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was not authenticated by the applicant's signature.  This document identifies the reason and characterization of the discharge and the presumption of government regularity prevails in the discharge process of this case.

3.  The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, Sec II by reason of misconduct (civil conviction) with a characterization of service of under other than honorable conditions.  Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant contends that he made a mistake and suffered the lawful consequences by being punished under civilian law.  However, Army Regulation 635-200, in pertinent part, stipulates that a Soldier may be separated when initially convicted by civil authorities, or when action is taken that is tantamount to a finding of guilty, if a punitive discharge authorized for the same or a closely related offense under the Manual for Courts Martial or the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. 

5.  The applicant contends he was being medically discharged with a proposed VA rating of 90 percent.  However, Army Regulation 635-200, in pertinent part, stipulates that commanders will not take action to separate Soldiers for a medical condition solely to spare a Soldier who may have committed serious acts of misconduct.  

6.  The applicant contends that he had good service which included two combat tours and received awards for valor.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceedings were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown.  

7.  The applicant contends that an upgrade of his discharge would allow him to receive 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.

8.  If the applicant desires a personal appearance hearing, it will be his responsibility to meet the burden of proof and provide the appropriate documents (i.e., the discharge packet) or other evidence sufficient to explain the facts, circumstances, and reasons underlying the separation action, for the Board’s consideration because they are not available in the official record.

9.  Therefore, based on the available evidence and the government presumption of regularity, it appears the reason for discharge and the characterization of service are both proper and equitable, thus recommend the Board deny relief. 



SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:  Records Review     Date:  22 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)		AR20130008694



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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