IN THE CASE OF:  	Mr. 

      BOARD DATE:  	22 November 2013

      CASE NUMBER:  	AR20130009517
___________________________________________________________________________

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 general, under honorable conditions to honorable.

2.  The applicant states, in effect, that he was unjustly discharged and that his current characterization of service prevents him from being able to use his GI Bill benefits.  He contends he was discriminated against because of his hair style which was within regulation; causing tension between him and outside leadership.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		17 May 2013
b. Discharge Received:		General, Under Honorable Conditions
c. Date of Discharge:			21 August 2012
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200, Chapter 
      14, paragraph 14-12c, JKQ, RE-3
e. Unit of assignment:			A Co, 101st BSB, 1HBCT, Fort Riley, KS
f. Current Enlistment Date/Term:	30 March 2010, 3 years and 23 weeks
g. Current Enlistment Service:	2 years, 4 months, 22 days
h. Total Service:			2 years, 4 months, 22 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l. Military Occupational Specialty:	92F10, Petroleum Supply Specialist
m. GT Score:				84
n. Education:				HS Graduate
o. Overseas Service:			Korea
p. Combat Service:			None
q. Decorations/Awards:		NDSM, GWOTSM, KDSM, ASR, OSR
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 30 March 2010, for a period of 3 years and      23 weeks.  He was 21 years old at the time of entry and a high school graduate.  He served in Korea.  He was serving at Fort Riley, KS when his discharge was initiated.  The record does not contain any evidence of acts of valor or meritorious achievements.  He completed 2 years, 4 months, and 22 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 of misconduct (serious offense) for wrongfully operating a vehicle while drunk, being disrespectful in language and deportment towards a noncommissioned officer, making a false official statement, breaking restriction, and failing to report to his appointed place of duty.

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 1 August 2012, the applicant waived his right to consult with legal counsel, was advised of the impact of the discharge action and did not submit 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 2 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 21 August 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), with a Separation Program Designator code (SPD) of JKQ and an RE code of 3. 

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

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

1.  An MP Report dated 14 April 2012, that indicates the applicant was the subject of an investigation for drunken driving, driving on suspended registration, failure to maintain proof of liability insurance, and a drivers license. 

2.  Article 15, imposed on 10 May 2012, for driving while drunk (120414).  The punishment consisted of reduction to the grade of E-2, forfeiture of $835.00 pay, extra duty and restriction for 45 days (FG).

3.  Article 15, imposed on 13 July 2012, for making a false official statement to his first sergeant (120601) and breaking restriction (120601).  The punishment consisted of reduction to the grade of E-1, forfeiture of $745.00 pay, extra duty and restriction for 45 days, and oral reprimand (FG).

4.  Eight negative counseling statements dated between 5 January 2012 and 23 May 2012, for DUI, failure to obey traffic laws, driving on suspended license, not wearing the proper uniform, giving a false statement, breaking restriction, failure to report, being disrespectful towards a noncommissioned officer, and notification of pending separation actions.

EVIDENCE SUBMITTED BY THE APPLICANT:

The applicant provided a DD Form 293.

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, 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 fully honorable discharge.  The applicant’s record of service was marred by two Articles 15 for multiple violations of the Uniform Code of Military Justice and eight negative counseling statements.

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 was unjustly discharged as the result of his hair style.  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 any evidence to support the contention that he was unjustly discriminated.  In fact, the applicant’s two Articles 15 and numerous negative counseling statements justify the applicant's discharge for misconduct.  The applicant’s statements alone does 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.   

5.  Furthermore, 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.  

6.  The applicant also contends his current characterization of service prevents him from being able to use his GI Bill benefits.  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.

7.  The records show the proper discharge and separation authority procedures were followed in this case.  

8.  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:  22 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)		AR20130009517



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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