IN THE CASE OF:  	Mr. 

      BOARD DATE:  	 24 July 2013

      CASE NUMBER:  	AR20130009597
___________________________________________________________________________

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 that 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 unfairly discharged because he stood up for himself and his commander did not like him.  He was discharged for a DUI that happened two years earlier and others in the same situation did not suffer the same consequences and are still in the military.  He loved the military and would like a chance to come back in and serve his country.

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:		16 May 2013
b. Discharge received:			General, Under Honorable Conditions
c. Date of Discharge:			17 December 2012
d. Reason/Authority/SPD/RE:		Misconduct (Serious Offense), AR 635-200,  							Chapter 14-12c, JKQ, RE-3
e. Unit of assignment:			E Co, 3d Bn, 227th Aviation Rgt, Fort Hood, TX
f. Current Enlistment Date/Term:	19 April 2010, 3 years and 19 weeks		
g. Current Enlistment Service:	2 years, 7 months, 29 days
h. Total Service:			2 years, 7 months, 29 days
i. Time Lost:				None
j. Previous Discharges:		None
k. Highest Grade Achieved:		E-4
l.  Military Occupational Specialty:	88M10, Motor Transport Specialist
m. GT Score:				NIF
n. Education:				HS Graduate
o. Overseas Service:			SWA
p. Combat Service:			Afghanistan (110611-120604)
q. Decorations/Awards:		ARCOM, NDSM, ACM-2CS, ASR, OSR, NATO MDL
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 19 April 2010, for a period of 3 years and 19 weeks.  He was 21 years old at the time of entry and was a high school graduate.  His record indicates he served a combat tour in Afghanistan and at the time of his discharge he was serving at Fort Hood, TX.  His record documents the award of an ARCOM. 

SEPARATION FACTS AND CIRCUMSTANCES

1.  The applicant’s available 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 authenticated by the applicant’s signature.  He was discharged as a SPC/E-4.

2.  The DD Form 214 indicates the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c, for misconduct (serious offense), with a characterization of service of general, under honorable conditions.  The DD Form 214 shows a Separation Program Designator (SPD) code of JKQ and a reentry (RE) code of 3.  

3.  The record contains a document dated 8 November 2012, which shows the separation authority waived further rehabilitation and directed the applicant’s discharge with a characterization of service of general, under honorable conditions.

4.  The applicant’s available record contains no evidence of time lost or any action under the Uniform Code of Military Justice (UCMJ).

5.  The applicant was separated under Orders 340-0158, HQS, III Corps and Fort Hood, TX, with an effective date of 17 December 2012.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD

There are no counseling statements or UCMJ actions in the record.  

EVIDENCE SUBMITTED BY THE APPLICANT 

None were provided with the application.

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 issues 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 record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature.      

3.  The DD Form 214 indicates that the applicant was discharged under the provisions of Chapter 14, AR 635-200, paragraph 14-12c by reason of misconduct (serious offense), with a characterization of service of general, under honorable conditions.  Barring evidence to the contrary, the presumption of government regularity prevails as it appears that all the requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  The applicant's contentions about being unfairly discharged were carefully considered.  However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service or the specific reason for the discharge.  Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption.  There is no evidence in the record, nor has the applicant produced any evidence to support a change to the characterization of service granted.  The applicant’s statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge.  

5.  The applicant contends that other Soldiers with similar offenses were allowed to stay in the Army.  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.  Moreover, the available record does not contain any indication or evidence of arbitrary or capricious actions by the command.

6.  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.

7.  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:  24 July 2013           Location: Washington, DC

Did the Applicant Testify?  No 

Counsel: No

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)		AR20130009597		

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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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