IN THE CASE OF:  	Mr. 

      BOARD DATE:  	20 November 2013

      CASE NUMBER:  	AR20130009910
___________________________________________________________________________

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, he had a huge drinking problem that he let get out of control.  He contends he had an injury to his back his second year of enlistment and he was self-medicating with alcohol.  He states he answered his country’s call twice and reenlisted in Bosnia therefore, he believes if he would have received treatment for alcoholism things would be different.  
 
DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			13 May 2013
b. Discharge Received:			General, Under Honorable Conditions
c. Date of Discharge:				23 May 2001
d. Reason/Authority/SPD/RE Code:		Misconduct, AR 635-200, Paragraph 14-12b,
JKA, RE-3
e. Unit of assignment:				HHC, 16th Engineer Battalion, APO AE
f. Current Enlistment Date/Term:		11 September 1998/4 years
g. Current Enlistment Service:		2 years, 8 months, 13 days
h. Total Service:				4 years, 9 months, 2 days
i. Time Lost:					None
j. Previous Discharges:			RA/960822-010510/HD
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		77F10, Petroleum Supply Specialist
m. GT Score:					99
n. Education:					HS Graduate
o. Overseas Service:				Germany
p. Combat Service:				None
q. Decorations/Awards:			ASR, AAM-4
r. Administrative Separation Board: 		No
s. Performance Ratings:			No
t. Counseling Statements:			Yes
u. Prior Board Review:				Yes
SUMMARY OF SERVICE:		
	
The applicant enlisted in the Regular Army on 22 August 1996, for a period of 3 years and he reenlisted on 11 September 1998 for 4 years.  He was 20 years old at the time of reenlistment and a high school graduate.  He served in Germany and earned four AAM’s.  He completed 4 years, 9 months, and 2 days of active duty service.  At the time his discharge proceedings were initiated, he was serving in Germany.
SEPARATION FACTS AND CIRCUMSTANCES:

1.  On 30 April 2001, the unit commander notified the applicant of initiation of separation action under Army Regulation 635-200, Chapter 14, paragraph 14-12b, by reason of pattern of misconduct . Specifically for:

     a.  On 4 August 1999, he received a company grade (CG) Article 15 for failing to be at his appointed place of duty and for failing to obey a superior NCO’s orders.

     b.  On 6 July 2000, he was tried by summary court-martial and found guilty of being disrespectful to an NCO and being derelict in the performance of his duties.

     c.  On 4 April 2001, he received a CG Article 15 for assaulting another Soldier and being drunk and disorderly.

2.  Based on the above pattern of misconduct, the commander recommended a general, under honorable conditions discharge.

3.  On 1 May 2001, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in 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 10 May 2001, 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 separated on 23 May 2001, under Army Regulation 635-200, Chapter 14-12b, with a general, under honorable conditions discharge, an SPD code of JKA, 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.  Article 15, dated 4 August 1999, for:

     a.  Failure to go at the time prescribed to his appointed place of duty, to wit: 0645 hours accountability formation adjacent to building #20.  This is a violation of Article 86.  

     b.  Having received a lawful order from sergeant (SGT) B, a NCO, then known by him to be a NCO, to help clean weapons with specialist (SPC) N and SPC G, an order which was his duty to obey, did at or near Giessen, Germany, on or about 21 July 1999, willfully disobey the same.  This is in violation of Article 91, UCMJ.  
     c.  The punishment consisted of reduction to E-3, forfeiture of $275 pay per month for one month, and 14 days extra duty (CG).

2.  DA Form 4430-R (Department of the Army Report of Result of Trial), dated 6 July 2000, trial by summary court-martial, for:

     a.  Charge I:  Article 91, UCMJ, disrespect to a senior NCO

     b.  Charge II:  Article 92, UCMJ, dereliction of duty

     c.  The applicant was found guilty of both charges.  The punishment consisted of reduction to the grade of E-3.

3.  Article 15, dated 4 April 2001, for:

     a.  Unlawfully striking SPC S on the head with a closed fist.  This is a violation of Article 128, UCMJ.

     b.  Being drunk and disorderly.  This is in violation of Article 134, UCMJ.

     c.  The punishment consisted of reduction to E-2, forfeiture of $273 pay per month for one month, restriction to Giessen Depot, PX, billets area, place of duty, dining facility, and place of worship for 14 days.

4.  Seven negative counseling statements dated between 8 July 1999 and 18 April 2001, for being late to formation-2x, failure to obey a lawful order or instructions, absent from 0630 accountability formation, missed dental appointment, unsatisfactory appearance of his room, and a alcohol related incident.
      
5.  DA Form 8003, (Army Substance Abuse Program Referral), for command referral, dated 25 January 2001.
      
6.  A Military Police (MP) Report, dated 31 March 2000, that indicates the applicant was the subject of an investigation for being in a traffic accident that caused damage to government and private property and for following too closely. 

7.  A MP Report, dated 7 January 2001, that indicates the applicant was the subject of an investigation for assault consummated by battery and drunk and disorderly conduct.

8.  DA Form 2823 (Sworn Statement), dated 31 March 2000, in which the applicant describes a traffic incident he was involved in.

9.  A report of mental status evaluation, dated 25 April 2001, which indicated the applicant was fully alert and oriented, and had normal thought content.  The applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and to participate in chapter proceedings.
EVIDENCE SUBMITTED BY THE APPLICANT:

1.  The applicant provided the following documents in support of his petition:

     a.  DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 2 February 2013.

     b.  DD Form 214 (Certificate of Release or Discharge from Active Duty).

     c.  A copy of the Department of Veterans Affairs (VA) identification card.

     d.  MILPER Message 99-100, Award of the Armed Forces Expeditionary Medal for Operations Joint Endeavor and Joint Guard.

     e.  DFAS Form 702 (Leave and Earnings Statement), dated 1-30 November 98 and 
1-30 June 2000.

     f.  A copy of his California commercial driver license.

     g.  Certificate of Participation, dated 29 August 1998 to 1 April 1999.

     h.  HAVOC Certificate of Appreciation.

     i.  Task Force Falcon Certificate of Achievement, dated 27 November 2000.

     j.  Certificate of Achievement, dated 11 September 1998.

     k.  State of California, Real Estate Conditional Salesperson License, issued 11 April 2007.

     l.  Two copies of NATO Medal certificate.

     m.  United States Army Oath of Reenlistment certificate, dated 11 September 1998.

     n.  United States Army Honorable Discharge certificate, dated 10 September 1998.

     o.  Certificate of Training, dated 7 March 1997, 10 March 1997, 5-9 May 1997, and 
21 August 1997.

     p.  Quartermaster School Diploma, dated 17 January 1997.

     q.  Article, Bulldogs Unleashed.

POST-SERVICE ACTIVITY: 

The applicant did not provide any with his 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 pattern of 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, being found guilty under summary court-martial proceedings, seven negative counseling statements, two MP reports and a sworn statement.

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 he had a huge drinking problem that he let get out of control.  He states he injured his back during his second enlistment and was self-medicating with alcohol.  He contends he reenlisted and believes if he would have received treatment for alcoholism things would be different.  However, AR 635-200, paragraph 1-16d(2), entitled counseling and rehabilitative requirements, states the rehabilitative requirements may be waived by the separation authority in circumstances where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality Soldier.  

5.  He had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  Further, the applicant’s record indicates that he was command referred to the Army Substance Abuse Program (ASAP) counseling center for assistance.  Therefore, this condition did not overcome the reason for discharge and the characterization of service granted.

6.  Further, the evidence of record (mental status evaluation), indicated the applicant was fully alert and oriented, with normal thought content, and could distinguish between right and wrong.

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:  20 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)		AR20130009910



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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