IN THE CASE OF:	Mr. 

      BOARD DATE:	2 December 2013

      CASE NUMBER:	AR20130009010
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant’s record of service during the period of enlistment under review and notwithstanding the examiner’s Discussion and Recommendation which follows, the Board determined that the characterization of service was too harsh based on the applicant’s length and quality of his service to include his combat service and as a result it is inequitable.  Accordingly, the Board voted to grant relief in the form of an upgrade of the characterization of service to honorable.  The Board determined the reason for discharge was proper and equitable and voted not to change it.  




      
      
      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 to upgrade his characterization of service from general, under honorable conditions to fully honorable.

2.  The applicant, in pertinent part states, in effect, his discharge was inequitable because it was based on a single negative incident over a span of five years of otherwise honorable service.  He admits what he did was wrong and disloyal to the Army.  He believes he was never given a fair chance at defending himself—a single DUI incident should not have been a cause for his discharge as he knows of Soldiers, senior enlisted and officers, with multiple DUIs and alcohol related offenses on their records and are still serving with minor reprimands.  He was told by his battalion commander that he was made as an example.  He was trying to help a Soldier get home from drinking too much.  He adds he had stopped drinking hours prior to leaving a drinking establishment, and was pulled over by MPs off-post in Germany.  He passed all three field sobriety tests, but it wasn’t until when the German police showed up and administered a breathalyzer test.  He was arrested for blowing over the German and US limits. He cooperated with all the authorities during this event.  He is ashamed of his actions and disappointed in himself for having committed this act.  He lost his rank of sergeant, and served 45 days of extra duty.  He also attended Army Substance Abuse Programs (ASAP) and met its program with great success.  Since being discharged, he has maintained a clean record, employed, and looking to further his education towards a degree in architecture.  He asks for an upgrade so that he can acquire his educational benefits.  Without the benefits, he is unable to afford continuing his education to attain a better career and provide for his family. 

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	9 May 2013
	b.	Discharge Received:	General, Under Honorable Conditions
	c.	Date of Discharge:	15 September 2012
	d.	Reason/Authority/SPD/RE Code:	Misconduct (Serious Offense), AR 635-200 
			Paragraph 14-12c, JKQ, RE-3
	e.	Unit of assignment:	C Btry, 1st Bn, 84th FA, 170th IN BCT 
	f.	Current Enlistment Date/Term:	13 June 2007, 6 years, 18 weeks
	g.	Current Enlistment Service:	5 years, 3 months, 3 days
	h.	Total Service:	5 years, 3 months, 3 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-5
	l.	Military Occupational Specialty:	13F10, Fire Support Specialist
	m.	GT Score:	121
	n.	Education:	HS Graduate
	o.	Overseas Service:	Germany, SWA
	p.	Combat Service:	Afghanistan (110421-120222), Iraq (090502-
			100411)
	q.	Decorations/Awards:	ARCOM-2; AAM; AGCM; NDSM; ACM-2CS; ICM-
			CS; GWOTSM; ASR; OSR-2; NATO MDL; CAB
	r.	Administrative Separation Board: 	No 
	s.	Performance Ratings:	Yes
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No 

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 13 June 2007, for a period of 6 years and 18 weeks.  He was 18 years old at the time of entry and a high school graduate.  He served in Germany, Iraq, and Afghanistan.  He earned two ARCOM awards and an AAM.  He completed 5 years, 3 months, and 3 days of active duty service.

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence contained in the applicant’s service record indicates that on 1 August 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, by reason misconduct (serious offense).  Specifically for receiving a FG Article 15 (120625) for operating a motor vehicle while drunk on (120511) and such behavior was unacceptable and would not be tolerated by the unit, the brigade, or the United States Army.

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 9 August 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action and submitted a statement on his own 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 with a general, under honorable conditions discharge.  

4.  On 11 August 2012, 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 from the Army on 15 September 2012, with a characterization of service of general, under honorable conditions under the provisions of Chapter 14, paragraph 14-12c, AR 635-200, for misconduct (serious offense), a Separation Program Designator code (SPD) 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.  The record contains an intoxilyzer - alcohol analyzer result that indicates a BAC of 0.096, dated 11 May 2012, at a time of 04:55.

2.  Article 15, dated 25 June 2012, for DWI (120511).  The punishment consisted of reduction to the grade of E-4, forfeiture of $1,133.00 per month for two months (suspended), 45 days of extra duty and restriction, (FG). 

3.  A negative counseling statement, dated 11 May 2012, for failing to follow the battalion safety instructions by drinking and driving.

4.  A General Officer Memorandum of Reprimand, dated 1 June 2012, for driving while intoxicated.

5.  An MP Report, dated 11 May 2012, that indicates the applicant was the subject of an investigation for drunk driving. 

6.  Two NCOERs covering period:

	a.	1 March 2012 to 11 May 2012, rendered for “Relief for Cause.”  The applicant was rated as “Marginal” and received 4/5 from the senior rater.

	b.	 1 March 2011 to 29 February 2012, rendered as an “Annual” report.  The applicant was rated as “Fully Capable” and received 3/2 from the senior rater.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided three ARCOM certificates for periods 2 May 2009 to 30 April 2010, 28 February 2011 to 28 February 2012, and 12 August 2010 to 30 June 2012; an AAM certificate for period 16 June 2008 to 19 June 2008; promotion orders, dated 28 February 2011; and AGCM orders for period 13 June 2007 to 12 June 2010. 

POST-SERVICE ACTIVITY: 

The applicant states, in effect, since his discharged, he has maintained a clean record, employed, and looking to further his education towards a degree in architecture.  

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.

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identifies the SPD code of "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, misconduct (serious offense).

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JKQ" will be assigned an RE Code of 3.

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 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 standards for acceptable conduct and performance of duty by military personnel.  The applicant by violating the Army's policy not to abuse alcohol, compromised the special trust and confidence placed in an NCO.  The applicant, as an NCO, had the duty to support and abide by the Army's alcohol abuse policies.  By abusing alcohol, the applicant knowingly risked a military career and diminished the quality of his service below that meriting an honorable discharge.  

3.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or sufficient evidence to show that the applicant’s service mitigated the misconduct or poor duty performance.  

4.  The applicant contends the incident that caused his discharge was the only one in his entire Army career.  Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army.  The applicable Army regulation states there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization.  The applicant's serious incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline.  

5.  The applicant contends that other Soldiers, senior NCOs and officers, with similar offenses were not discharged or allowed to stay in the Army with minor reprimands.  However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.

6.  The applicant contends that since leaving the Army he has been employed continuously and maintains a clean record.  The applicant’s post-service accomplishments have been noted as outlined on the application.  However, in review of the applicant’s entire service record and the reasons for the discharge, it appears that these accomplishments did not overcome the reason for discharge and characterization of service granted.  Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  However, the Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered during Board proceedings.  The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

7.  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.

8.  In view of the above, the records show the proper discharge and separation authority procedures were followed in this case.  

9.  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:  2 December 2013       Location: Washington, DC

Did the Applicant Testify?  No 

Counsel:  None

Witnesses/Observers:  NA

Board Vote:
Character Change:  3	No Change:  2
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:		Yes
Change Characterization to:	Honorable
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)		AR20130009010

Page 7 of 7 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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