IN THE CASE OF:	Mr. 

      BOARD DATE:	2 December 2013

      CASE NUMBER:	AR20130009332
___________________________________________________________________________

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 to upgrade his uncharacterized discharge to fully honorable.

2.  The applicant states, in effect, during the gas chamber exercise in basic training, he was thrown against a wall that caused his nose to bleed and he threw up blood.  When he asked for medical treatment it was denied.  Over the next four days, he repeatedly requested to seek medical treatment and was denied.  When he was finally hospitalized, he was advised to speak with patient advocacy, who further advised him to speak with an IG.  As a result, he was told “we’re getting rid of your ass,” and they did.  The unit lied to him about the type of discharge he would receive.  In addition, they tried to make him pay for his ticket home.

DISCHARGE UNDER REVIEW INFORMATION:

	a.	Application Receipt Date:	13 May 2013
	b.	Discharge Received:	Uncharacterized
	c.	Date of Discharge:	11 December 2012
	d.	Reason/Authority/SPD/RE Code:	Entry Level Performance and Conduct, AR 635-200 
			Chapter 11, JGA, RE-3
	e.	Unit of assignment:	C Co, 3rd Bn, 47th IN Rgt, Fort Benning, GA
	f.	Current Enlistment Date/Term:	1 November 2012, 6 years
	g.	Current Enlistment Service:	0 years, 1 month, 11 days
	h.	Total Service:	0 years, 1 month, 11 days
	i.	Time Lost:	None
	j.	Previous Discharges:	None
	k.	Highest Grade Achieved:	E-1
	l.	Military Occupational Specialty:	None
	m.	GT Score:	104 
	n.	Education:	HS Graduate
	o.	Overseas Service:	None
	p.	Combat Service:	None
	q.	Decorations/Awards:	None
	r.	Administrative Separation Board: 	No
	s.	Performance Ratings:	None
	t.	Counseling Statements:	Yes
	u.	Prior Board Review:	No

SUMMARY OF SERVICE:  

The applicant enlisted in the Regular Army on 1 November 2012, for a period of 6 years.  He was 18 years old at the time of entry and a high school graduate.  His record documents no acts of valor or significant achievement.  He was attending basic training at Fort Benning, GA when his separation was initiated.



SEPARATION FACTS AND CIRCUMSTANCES:

1.  The evidence of record shows that on 6 December 2012, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 11, AR 635-200, by reason of entry level performance and conduct for failure to adapt socially and emotionally to military life, and demonstrated character and behavior characteristics not compatible with satisfactory continued service.

2.  The unit commander recommended the applicant’s separation from the Army with an uncharacterized discharge and advised the applicant of his rights.

3.  On 6 December 2012, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement on his behalf.  The unit commander subsequently recommended the applicant’s discharge and waiver of further rehabilitative efforts.  

4.  On 6 December 2012, the separation authority waived further rehabilitation and directed the applicant’s separation from the Army with an uncharacterized discharge.

5.  The applicant was separated from the Army on 11 December 2012, with an uncharacterized discharge.

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

Six negative counseling statements dated between 19 November 2012 and 4 December 2012, for lacking motivation; being disrespectful to an NCO; being recommended for separation for failing to adapt to military environment, lacking motivation and discipline, and disregarding the core Army Values and Warrior Ethos; failing to follow instructions; failing to follow sick-call procedures; not being accountable; and disrespecting and lying to an NCO.  

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided VA Form 21-4138, Statement in Support of Claim, dated 8 May 2013, with a self-authored statement in connection with a claim for benefits and letter, dated 1 April 2013, rendered by LTC E, an IG.

POST-SERVICE ACTIVITY: 

The applicant provided none.  



REGULATORY AUTHORITY:

1.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-9 contains guidance on entry level separations.  It states a separation will be described as entry-level with service uncharacterized if, at the time separation action is initiated, the Soldier has less than 180 days of continuous active duty service.

2.  Chapter 11 of Army Regulation 635-200 provides for the separation of personnel due to unsatisfactory performance, conduct, or both, while in an entry level status (ELS).  An uncharacterized service description is normally granted to Soldiers separating under this chapter. 

3.  A general discharge (GD) under honorable conditions discharge is not authorized under ELS conditions and an honorable discharge (HD) is rarely ever granted.  An HD may be given only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct and/or performance of duty.

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, and 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 evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the uncharacterized description of service accurately reflects the applicant’s overall record of service.  An uncharacterized discharge is neither positive nor negative and it is not meant to be a negative reflection of a Soldier’s military service.  It merely means that the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise.  

3.  The separation authority approved the applicant's discharge as entry-level status, with the description of service as uncharacterized.  Army Regulation 635-200 provides in pertinent part, that a Soldier is in entry-level status for the first 180 days of continuous active duty.  The purpose of the entry-level status is to provide the Soldier a probationary period.  Soldiers who are found to lack the necessary motivation, adaptability, self-discipline, ability, or attitude to become productive Soldiers may be expeditiously separated while in entry-level status.  The regulation also provides, except in cases of serious misconduct, that a Soldier’s service will be uncharacterized when the separation is initiated while the Soldier is in entry level status.  

4.  A general, under honorable conditions discharge is not authorized under ELS conditions and an honorable discharge may be granted only in cases which are clearly warranted by unusual circumstances involving outstanding personal conduct or performance of duty.  The applicant’s service record indicates no such unusual circumstances were present and did not warrant an honorable discharge.  

5.  The applicant contends his discharge was unjust because during a gas chamber exercise in basic training, he was thrown against a wall that caused his nose to bleed and he threw up blood, and his repeated requests to seek medical treatment were denied.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced sufficient evidence to support the contention that he may have been unjustly discriminated.  In fact, the applicant’s numerous negative counseling statements justify a pattern of misconduct.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.  

6.  In addition, the IG letter the applicant provided to support his request for an upgrade does not elaborate on any unusual circumstances involving outstanding personal conduct or performance of duty to support an upgrade.  The letter also does not provide any evidence sufficiently compelling to overcome the presumption of government regularity in the characterization of the applicant’s discharge.

7.  Furthermore, regarding the applicant’s contention that medical issues may have contributed to his discharge from the Army, the service record does not support the applicant’s contention, and no evidence to support it has been submitted to corroborate the discharge was the result of any medical condition.  Further, the record does not contain any medical evidence to indicate a problem which would have rendered the applicant disqualified for further military service with either medical limitation or medication.  

8.  The record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The character of the applicant’s discharge is commensurate with his overall service record, specifically his service was determined to be uncharacterized as the separation action was initiated while he was in an entry level status.  Accordingly, 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?  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)		AR20130009332

Page 6 of 6 pages


ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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